GLENN L. GREENE, JR. MOVANT v. KENTUCKY BAR ASSOCIATION, RESPONDENT
92-SC-1027-KB
SUPREME COURT OF KENTUCKY
904 S.W.2d 233;
1995 Ky. LEXIS 95
August 24, 1995, ENTERED
SUBSEQUENT HISTORY: Released for Publication September 6, 1995.
DISPOSITION:
[**1] Denied
COUNSEL: ATTORNEYS FOR MOVANT: Frank E. Haddad, Jr., Peter L. Ostermiller, Louisville,
KY.
ATTORNEYS FOR ESPONDENT: Bruce K. Davis, Barbara S. Rea, Kentucky Bar
Association, Frankfort, KY.
JUDGES: Stephens, C.J., Lambert, Leibson, Reynolds and Shumbo, JJ., concur.
Wintersheimer, J., dissents by separate opinion. Fungus J., not sitting.
OPINIONBY: Robert F. Stephens
OPINION:
[*234]
OPINION AND ORDER
Glenn L. Greene Jr. has filed an application for
reinstatement to the
practice of law in the Commonwealth of Kentucky after having been
disbarred in 1974. Greene has, through great effort and after many years, been able to
rehabilitate himself and merit
reinstatement. We will detail his
misconduct and
rehabilitation.
Green was
disbarred following his guilty plea to the federal offense of mail fraud. He
defrauded 26
investors of a total in excess of $ 250,000. Greene served one year in prison before
being released on parole in August, 1974.
One of the conditions of his
probation was that he pay 25% of his
gross income to his victims, pro rata, during the five- year probationary period. As a
result of the
court-ordered
restitution, approximately $ 105,000 was distributed to the
defrauded
[**2]
investors at the end of Greene's
probation in 1979. Prior to his criminal indictment, Greene voluntarily
paid
restitution in excess of $ 10,000.
In January 1982, Greene entered a thirty-day in-patient treatment program for
alcohol abuse. Greene followed that program with participation in Alcoholics
Anonymous. He has been active in AA and
"clean and sober" since 1982. The resolution of his problem with alcohol has also resolved his
gambling problem which was an offshoot of and fueled by his alcohol abuse.
Also in 1982, Greene filed an application for
reinstatement with the Kentucky Bar Association. At the time of his 1982 application, Greene
had substantial debts, most of which were due to unpaid taxes dating from the
period he was
paying 25% of his
gross income in
court-ordered
restitution. He had filed tax returns for the periods he was unable to pay and had entered
into a payment plan with the IRS. Greene's application was ultimately denied
based on Greene's failure to make any
restitution other than that ordered by the federal
court, lack of any definite plan to make
restitution, and substantial debts which placed him in a similar financial position to that
when he
defrauded
[**3] the
investors.
Greene filed another application for
reinstatement in 1987. That application was accompanied by a Voluntary
Restitution Plan for the
defrauded
investors. Greene voluntarily withdrew his application in 1988 because of his ongoing
financial problems and was forced to abandon his
restitution plan after
paying an additional $ 1,263.62 to the
investors.
In 1990, Greene filed for bankruptcy and
discharged over $ 200,000 in credit card debts and bank loans. The
discharged debts were incurred over a period of time, many of them after his
incarceration while
paying the
court-ordered
restitution, and his debts continued to increase after that time. After his
[*235] probationary period, Greene was engaged in a payment plan to the IRS, and he
provided
financial assistance to his
six children to aid in
paying for college (financial aid which Greene now acknowledges he could not really
afford). Greene borrowed heavily during this period, utilizing bank loans and
credit cards.
In 1990, Greene owed $ 71,000 in federal taxes. He now has no outstanding tax
obligations to any state or federal authority. Since 1990, Greene has also
repaid approximately $ 10,000 to the Bank of Harlan for
[**4] loans which were
discharged in the bankruptcy.
In December 1992, Greene filed his current application for
reinstatement. In 1994, he filed a Voluntary
Restitution Plan indicating he would pay 5% of his after tax income into an escrow account
with distributions to the
defrauded
investors to be made on a
quarterly basis. The plan provides for
quarterly reports to the KBA and acknowledges that continued compliance with the
restitution provisions shall be a condition of his
reinstatement to the KBA and
failure to comply shall be grounds for revoking any
reinstatement ordered by this Court.
From June 1988 (when Greene abandoned his 1987 plan) to his renewed
restitution plan in 1994, Greene had not made any
restitution as he paid on his tax liabilities and some of the debts that were
discharged in bankruptcy. As part of the 1994 plan, in March 1994 he distributed among
the
investors 5% of his after tax income from June 1988 through December 1992. He has since
made additional distributions.
Greene sent the
defrauded
investors a copy of his distribution plan and a letter indicating he had an application
for
reinstatement to the Kentucky bar pending in this Court. None of the
investors
[**5] have indicated any problems with the plan or with Greene's application for
reinstatement.
Greene hopes to make full
restitution to the
defrauded
investors in his lifetime, but also believes it is reasonably possible to complete
restitution in five to seven
years. He hopes to pay more than the minimum of 5% and testified it was quite
possible he could pay in the neighborhood of $ 15,000 to $ 25,000 per year.
Greene provided affidavits and testimony from individuals, including a U.S.
district court judge and a bank president, who have known him, both personally
and professionally, for a number of years. Testimony from these witnesses
indicated many of Greene's financial problems were due to the
court-ordered
restitution of 25% of his
gross income. His current
financial situation was characterized as
"sound, very good." Greene has been involved with AA and has not had a drink since 1982. The
witnesses testified he has a good reputation for honesty and integrity and
would be an able attorney and further testified they would recommend Greene as
an attorney if he were
reinstated. The bank president testified that Greene performed excellent title abstract
work for Harlan attorneys
[**6] and that he would recommend that the bank use Greene if he were
reinstated. Testimony
indicated Greene has straightened out his life and rehabilitated himself
personally, professionally, and financially.
Both the Character and
Fitness Committee and the Trial Commissioner
recommended that Greene be
reinstated. The Board of Governors, by a vote of 10 to 7
recommended against
reinstatement.
In
In re Cohen, Ky., 706 S.W.2d 832 (1986), we set out a number of factors to be determined in deciding whether an
attorney should be
reinstated to the
practice of law. The Board of Governors focussed on one of those factors, the nature of the
misconduct leading to
disbarment, as the most significant factor. Although it is a factor, and Greene's
misconduct was very serious, it is not the most significant in determining whether an
attorney should be
reinstated. The
"fact that one has transgressed does not forever place him beyond the pale of
respectability."
In re May, Ky., 249 S.W.2d 798 (1952).
Other factors are that the attorney manifest a sense of
wrongdoing and realize the
seriousness of his prior conduct, both of which Greene has done and Cohen did not do.
Also, the attorney's
[**7] previous and subsequent
[*236] conduct in regard to the
practice of law, should be considered. There is no indication of any problem with Greene's law
practice prior to
disbarment, nor is there any indication Greene has engaged in the
practice of law since his
disbarment. The attorney's conduct and character since
disbarment also must show he is
worthy of the public's
confidence and trust. Greene's conduct and character, outside the financial realm, do
show he is currently
worthy of public trust.
The bulk of Greene's financial problems, culminating in his bankruptcy, stemmed
from his original
misconduct which resulted in his felony conviction and subsequent
restitution and tax problems. Although Greene did not make the best financial choices in
providing
financial assistance he could not afford to his children, and his 1990 bankruptcy is troubling,
Greene's circumstances warranted turning to the remedy provided by federal
law for persons in such situations and should not exclude his
reinstatement. Greene's current
financial situation is sound. His only debts now appear to be
restitution to the
defrauded
investors.
"The ultimate and
decisive question is whether the applicant is now of
[**8]
good moral character and is a fit and proper person to be reentrusted with the
confidence and privilege of being an attorney at law." Ina re Cohen, supra at 834. In Cohen, Bernhardt Cohen did
"not
appreciate the nature and quality of his original mistake,"
Id. at 834, and he
"was less than candid with the Character and
Fitness Committee."
Id. at 835. Neither is true in Greene's case.
Also, in Cohen, the trial commissioner found there was
"an overwhelming lack of evidence" on which to support Cohen's
reinstatement and this Court concluded that the evidence lacked the
"persuasive quality necessary to induce belief in the applicant's present
professional competency and
good moral character." Greene has persuasively shown his present professional
competency and
good moral character.
In a case similar to Greene's, Ollie James Cohen in
In re Cohen, Ky., 401 S.W.2d 54 (1966), made no attempt to satisfy a civil fraud judgment rendered against him ten
years prior to his application for
reinstatement. The KBA found that this failure, including the failure to contact the wronged
persons or arrange for future payment, indicated Cohen's failure to be
rehabilitated.
[**9] In addition, the KBA pointed out several instances of Cohen's behavior which
were inconsistent with the good character necessary to be
reinstated, and Cohen produced very little evidence of any substantial facts which tended
to show any significant
rehabilitation.
In this case, testimony indicated that Greene's failure to make
restitution payments was due to his financial condition and not due to lack of
rehabilitation. He has contacted the wronged persons, has arranged a repayment
plan and is currently making
restitution. Also, Greene has produced affidavits and testimony regarding specific and
substantial facts tending to show significant
rehabilitation -- his lifestyle, personal life and
financial situation have all changed.
The application of Glenn L. Greene Jr. for
reinstatement to the
practice of law in the Commonwealth of Kentucky is hereby approved, subject to completing the
requirements of SCR 3.500(3), including the successful passage of the Bar
Examination, and payment of costs and on the following conditions:
1) Greene continue to make
restitution payments of at least 5% of his after-tax income to the
defrauded
investors; and
2) Greene provide
quarterly reports
[**10] to the KBA on the progress of
restitution.
Failure to comply with either of these conditions shall be grounds for revoking
his license to practice law.
Stephens, C.J., Lambert, Leibson, Reynolds and Stumbo, JJ., concur.
Wintersheimer, J., dissents by separate opinion. Fuqua, J., not sitting.
ENTERED: August 24, 1995.
/s/ Robert F. Stephens, CHIEF JUSTICE
DISSENTBY: WINTERSHEIMER
DISSENT:
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the Opinion and Order of the majority because
Greene has not yet sustained his burden of proving his
fitness for
reinstatement to the
[*237]
practice of law as required by prior cases of this Court. The Board of Governors of the
Kentucky Bar Association was correct when it determined that the application
should be denied. This Court has improvidently substituted its view of the case
for that of the Board of Governors.
The Majority Opinion has recited in some detail the
misconduct which caused Greene to be
disbarred in 1972. He was originally admitted to the
practice of law in Kentucky in 1958 and also obtained a license to practice law in Florida in
1961. Other than a period from 1960 to 1972, when he lived in Florida and
[**11] during his one year
incarceration, Greene has lived and worked in the Harlan area. He served slightly more than
one year in prison and was released in
1974 on five years'
probation which was completed in August 1979.
One of the conditions of his
probation was that he pay 25 percent of his
gross income to his victims, pro rata, during the five year
probation period. After his indictment, but before
incarceration, he had
repaid $ 10,000 to his victims and after serving his prison term, he paid an
additional $ 107,000 into court for
restitution, for a total of $ 117,000
repaid. No other significant
restitution was undertaken until it became a factor in this
reinstatement process.
Greene applied for
reinstatement on two previous occasions. His application in 1982 was denied by this Court.
In 1987, he again filed for
reinstatement, but voluntarily withdrew the application because of his determination that his
personal
financial situation had not substantially improved since his previous application was denied. At
the time the plan was abandoned, Greene had paid an additional $ 1,263 to the
victims.
Greene believes that his post-disbarment financial problems resulted from the
court-ordered
[**12]
restitution of 25 percent of his
gross income from 1974 to 1979 and the
financial assistance he gave his six children by putting them through college. He was unable to pay
in full all taxes due and to assist his children at college.
Greene was divorced from his first wife and the mother of his six children in
1979 and remarried in 1990. He has a young child from the second marriage. The
second Mrs. Greene is employed and is able to contribute financially to the
household.
Since
disbarment, Greene has worked in labor relations and coal acquistitions in the coal
industry and has performed title abstract work and other duties for attorneys
in the Harlan area. He has not practiced law.
As part of his present application for
reinstatement, he submitted a voluntary
restitution plan whereby he has begun repaying the remaining principal
amounts due to the victims of his criminal activity at the rate of 5 percent of
his net income, to be paid on a
quarterly basis. On March 1, 1994, Greene paid the sum of $ 1,775 as
restitution for that quarter of 1994. The second distribution was made in June 1994, and a
third distribution in December 1994.
Greene is now 61 years of age and if
reinstated,
[**13] plans to go into practice with his uncle, an attorney in Harlan, who is said
to be close to retirement age. Greene hopes to make full
restitution to the
defrauded
investors in his lifetime, but believes it is reasonably possible to complete
restitution in five to seven years. As the majority opinion notes, he hopes to pay more
than the minimum 5 percent, and testified that it was quite possible he could
pay in the neighborhood of $ 15,000 to $ 25,000 per year.
I believe that the Board of Governors of the Kentucky Bar Association was
correct when it
recommended that
Greene be denied
reinstatement at this time.
Reinstatement to the
practice of law after
disbarment is provided by SCR 3.520.
Reinstatement is not automatic. Such an applicant must complete a minimum number of
continuing legal education credits, be certified by the Character and
Fitness Committee and the Board of Governors of the Kentucky Bar Association following
an appropriate investigation. The applicant bears the burden of proving by
substantial evidence his
qualification for
reinstatement. SCR 3.330;
Kentucky State Bar Assn. v. Smith, Ky., 528 S.W.2d 672 (1975). This Court is not bound by
recommendations of the
[**14] Board of Governors, but frequently gives great deference to the
recommendation of the Board. The Supreme Court is the
[*238] final arbiter of the facts, the law and the
fitness of the applicant to resume the public trust involved in the
practice of law. In this case, the Board properly relied on the factors enumerated in
In re Cohen, Ky., 706 S.W.2d 832 (1986).
In Cohen, this Court stated that the
reinstatement process necessarily included a review of the nature of the conduct which led
to the original discipline, as well as the conduct during the period of
disbarment. In this case, the Board of Governors was not persuaded that Greene had
satisfied all the standards for
reinstatement set out in Cohen. The Board determined that the nature of the original
misconduct, mail fraud and misappropriation, is a significant factor to be considered in
the
reinstatement process. The Board correctly found that Greene has not sustained his burden of
proof concerning his appreciation of his prior fraudulent conduct. The Board
determined that the
rehabilitation process is as yet insufficient to warrant reentry into the legal profession.
The Board particularly determined that his conduct and
[**15] character since
disbarment did not show that Greene is
worthy of public
confidence and trust. It also determined that the ultimate and
decisive question is whether an
attorney is of
good moral character and is fit to reenter with the
confidence and privilege of being an attorney. Clearly, the fraudulent conduct which led
to Greene's conviction and
disbarment is the total opposite of trust and
confidence which should be found in a member of the legal profession. The Board properly
found that his sporadic and incomplete
restitution efforts earlier were a considerable impediment to
reinstatement at this time. The nature and
seriousness of the conduct which led to
disbarment cannot be overstated. The theft of $ 270,000 from 26
investors is obviously of great concern in evaluating the
qualifications of anyone who wishes to be a lawyer. Although these victims were
repaid approximately 40 percent of the principal amount stolen within ten years,
pursuant to court order, Greene now hopes to begin voluntarily repaying the
remaining 60 percent owed in order to gain
reinstatement. The victims of the fraud, some of whom are now dead, or otherwise unknown,
after 25 years, have not and
will not be
[**16] made whole because of the passage of time and the lack of interest on the
principal originally stolen. Obviously this is a significant factor in the
misconduct and resulting harm to the victims.
The Board properly determined that there was a tragic but consistent lack of
appreciation for the
seriousness of the problem as demonstrated by the 1982 and 1987 requests for readmission
prior to Greene getting his financial affairs in manageable order. Greene has a
great propensity for
confidence and optimism, but his prior conduct does not support such an optimistic view.
The fact that Greene is able to propose a repayment plan at all is a result of
his filing bankruptcy in 1990. The prudence and selection of financial
management during the past 20 years by Mr. Greene is not inspiring. The offer
of a 5 percent gross payment to debtors is modest at most.
Greene's desire to contribute to the education of his
children is laudable but borrowing money at credit card interest rates in order
to do so is not fiscally sound. Using the limited funds to repay
discharged debts or to assume obligations of others is imprudent, particularly if the
original victims remain unreimbursed.
The Board was
[**17] correct in refusing
reinstatement because Greene has failed to
appreciate the nature and quality of his original mistake. Cohen, supra. Sympathy and
mitigation should not be valid considerations in judging the merits of
reinstatement. Similar
reinstatement was denied to Ollie James Cohen in
In re Cohen, Ky., 401 S.W.2d 54 (1966). It is the responsibility of the reviewing Board and the Supreme Court to look
beyond individual concerns of mercy for the applicant for
reinstatement and to consider the responsibility of lawyers to the public. The
responsibility of this Court is to protect the public from anyone who claims to
be a lawyer from misdealing or misrepresentation. The considerable
confidence of Greene that he can
handle these matters is not shared. Certainly there have been shavebeen
significant steps toward personal
rehabilitation, but these efforts are not a substitute for current
fitness to reenter the
practice of law. Although Greene has made considerable progress towards
[*239] better management of his finances, the task is not yet complete.
I would adopt the decision of the Board of Governors and deny
reinstatement.
