The relevant period of time is that covered by the counts of the indictment related to this appeal -- from October 3, 1979 to October 30, 1980. During this period, three bankruptcy judges sat in the Eastern District of Michigan, Southern Division: Judge Hackett, Judge Brody, and Judge Patton. Judge Patton took all of the Chapter 13 cases. A blind draw system was designed to assign to him approximately 30% of the Chapter 7 and Chapter 11 cases. The system was operated by using decks of 100 3" X 5" index cards, each  [**3]  typically containing 30 marked for Judge Patton and 35 marked for each of Judges Brody and Hackett. The cards were shuffled, numbered, and sealed on three sides so that the judge's name was not visible. In eighteen of the seventy-two packs used while Bogoff was an intake clerk, the order of the cards was adjusted so that no two cards bearing the same judge's name were next to each other; in other cases, the cards were randomly mixed. When a bankruptcy petition was filed, the intake clerk removed the top card from a judge assignment deck, turned it over to reveal the name of the judge to whom the case was assigned, and stamped that judge's name on the petition.

August's law firm filed about one-half of the Chapter 11 cases in the Eastern District of Michigan during the period here involved. August had a romantic relationship during this period with intake clerk Bogoff. n2 Although she was not the only clerk in the office and filed only about half of all bankruptcy petitions, she arranged matters so that  [*301]  she handled almost all of the judge assignments in cases involving August's firm. She allowed members of that firm to come behind the counter to drop off filings without  [**4]  waiting in line. She permitted August to leave on her desk his briefcase containing filings.

The government's theory was that Bogoff would take several petitions to the counter, draw a card and look at the judge's name. If Judge Patton's or Judge Hackett's name appeared, she would file the Chapter 11 petition presented by the August firm. n3 Sixty-eight Chapter 11 cases were filed by August's firm during this period, of which 92% were handled by Bogoff and only nine initially were assigned to Judge Brody. If multiple petitions were filed involving the same parties, the cases were eventually consolidated and assigned to the judge to whom the first of the petitions had been assigned. After consolidations, only four Chapter 11 cases filed by the August firm remained assigned to Judge Brody. n4

At trial, the government adduced circumstantial evidence that it was possible to manipulate the blind draw system; that Bogoff had filed almost all of August's cases; and that a disproportionately low percentage of August's cases were assigned to Judge Brody. Professor David Doane, an expert statistician, testified that there was a 99.97% chance that more August cases would have been assigned  [**5]  to Judge Brody if the blind draw system were truly random.

n2 August contributed significantly to Bogoff's support. In 1980, he deposited directly into her personal bank account checks from his law firm clients totalling more than $ 11,000.

n3 Defendants' theory was that members of August's firm would wait outside the intake window until Judge Brody was assigned to another case, then step up to the window, assuming that no judge's name appeared on two consecutive cards. But only eighteen of the seventy-two decks used while Bogoff was an intake clerk were arranged so that no judge's name appeared twice in sequence. This theory was refuted conclusively at trial on a number of grounds, including the fact that the mathematical odds against Judge Brody's assignment to so few August cases were 99 to 1 even if members of the firm behaved in the manner appellants suggest.

n4 August considered Judge Brody a difficult judge before whom to practice. Specifically, August thought that Judge Brody awarded smaller attorney fees. In 1978, August told Judge Brody in chambers that he could not afford to handle such cases if Judge Brody continued to reduce his fee awards so much. He asked Judge Brody to transfer all of the August firm cases to which Judge Brody had been assigned to Judge Hackett (a personal friend of August). Judge Brody refused to do so.
 [**6]   
 [*302]  [United States v August, 745 F2d 400, 402-403 (CA 6, 1984).]

(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;

(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;

(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;

(4) he or she has complied fully with the order of discipline;

(5) his or her conduct since the order of discipline has been exemplary and above reproach;

(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;

(7) he or she can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general  [**12]  to aid in the administration of justice as a member of the bar and as an officer of the court . . . .

It is generally agreed that in assessing an application for reinstatement consideration must be given to the nature of the original offense for which the applicant was disbarred. Obviously, the more serious the nature of the underlying offense, the more difficult the task becomes to show a basis for reinstatement  [**13]  . [Emphasis added.]

On 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. . . . 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.

n4 [H]e or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards. [MCR 9.123(B)(6).]

As serious as August's crimes were, the Court rules, have at all times since his disbarment, led the petitioner to believe that he could file a petition for reinstatement after five years. Nowhere is it stated in the rules that a person convicted of a heinous crime, or manipulating the justice system, or committing homicide, or some other crime, shall be permanently disbarred. Had the Supreme Court wished to preclude certain offenders from ever applying for reinstatement, it would have said so pursuant to its rule making powers.

n5 [T]he term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license. [MCR 9.123(B)(2).]

(A) Suspension, 119 Days or Less. An attorney whose license has been suspended for 119 days or less is automatically reinstated by filing with the Supreme Court clerk and the administrator an affidavit showing that the attorney has fully complied with the terms and conditions of the suspension order. A false statement contained in the affidavit is ground for disbarment.

(B) Revocation or Suspension More Than 119 Days. An attorney whose license to practice law has been revoked or suspended for more than 119 days is not eligible for reinstatement until the attorney has petitioned for reinstatement under MCR 9.124 and has established by clear and convincing evidence that:

(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;

(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;

(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;

(4) he or she has complied fully with the order of discipline;

(5) his or her conduct since the order of discipline has been exemplary and above reproach;

(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;

(7) he or she can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;

(8) he or she is in compliance with the requirements of subrule (C), if applicable; and

(9) he or she has reimbursed the client security fund of the State Bar of Michigan or has agreed to an arrangement satisfactory to the fund to reimburse the fund for any money paid from the fund as a result of his or her conduct. Failure to fully reimburse as agreed is ground for revocation of a reinstatement.

(C) Reinstatement After Three Years. An attorney who, as a result of disciplinary proceedings, resigns, is disbarred, or is suspended for any period of time, and who does not practice law for 3 years or more, whether as the result of the period of discipline or voluntarily, must be recertified by the Board of Law Examiners before the attorney may be reinstated to the practice of law.

-- The requisite showing of rehabilitation can by definition only be measured in relation to the nature and seriousness of the original misconduct. Hearing panels of the Attorney Discipline Board  [*320]  cannot determine how far along the road to rehabilitation the petitioner has come without reference to a starting point.

-- MCR 9.123 must be interpreted in the context of other court rules relating to license removal and reinstatement. Those rules provide further evidence that the original misconduct must be considered in a reinstatement proceeding.

-- MCR 9.123 must be understood to encompass consideration of the original misconduct when a disbarred lawyer seeks reinstatement.

-- A petitioner's fitness to be reinstated to practice cannot be determined without consideration of the nature and circumstances of the misconduct  [**34]  resulting in the discipline.

-- When considering reinstatement of a lawyer who converted and misappropriated client funds, the evidence of present character must be considered in light of the moral shortcomings that resulted in the discipline, Tardiff v State Bar [27 Cal 3d 395; 165 Cal Rptr 829; 612 P2d 919 (1980)].

-- Like fitness, rehabilitation must be viewed from a reference point, i.e., rehabilitation from what, of what type, nature and extent.

-- Without considering the nature of the misconduct, the Attorney Discipline Board has no reference point from which to relate "fitness" and "rehabilitation" to the standards of trustworthiness and confidence required by MCR 9.123.

An evaluation of Petitioner/Appellee's fitness  [*321]  and rehabilitation must take into account the impact the nature of his misconduct will have on the administration of justice, e.g. whether judges, counsel, and court employees, knowing of the conduct which led to disbarment, will treat Petitioner/Appellee so differently to avoid any suspicion that Petitioner/Appellee's  [**35]  clients and their interests may be disadvantaged.

Similarly, the protection of the public and the courts cannot be assured without review of the nature and seriousness of the misconduct giving rise to the discipline, and whether in light of the gravity of those acts the integrity of any judicial proceeding in which the petitioner if reinstated might participate is likely to be brought into question.

[A]n abuse of discretion standard would operate to prevent the board from effectively carrying out its overview function of continuity and consistency in discipline imposed. [Citation omitted.] Hearing panels meet infrequently and are exposed to a relatively small number of discipline situations. n[6] [Id. at 319-320.]

n15 2.2 Disbarment

Disbarment terminates the individual's status as a lawyer. Where disbarment is not permanent, procedures should be established for a lawyer who has been disbarred to apply for readmission, provided that:

(1) no application should be considered for five years from the effective date of disbarment; and

(2) the petitioner must show by clear and convincing evidence:

(a) successful completion of the bar examination,

(b) compliance with all applicable discipline or disability orders or rules; and

(c) rehabilitation and fitness to practice law.