In re Petition for
Reinstatement of ROBERT A. McWHORTER, ROBERT A. McWHORTER, Petitioner-Appellee, v GRIEVANCE
ADMINISTRATOR, Appellant.
No. 99848
SUPREME COURT OF MICHIGAN
449 Mich. 130;
534 N.W.2d 480;
1995 Mich. LEXIS 1419
March 8, 1995, Argued
July 5, 1995, Decided
July 5, 1995, FILED
SUBSEQUENT HISTORY: Certiorari Denied February 20, 1996, Reported at:
1996 U.S. LEXIS 1016.
DISPOSITION:
[***1]
Reversed.
COUNSEL: Robert A. McWhorter, in propria persona, and Colista, Admas
& Palmer P.C. of counsel (by F. Philip Colista, Royal Oak, MI.
Philip J. Thomas, Jane Shallal, and Susan E. Gillooly, Detroit MI, for the
Attorney Grievance Commission.
JUDGES: BEFORE THE ENTIRE BENCH. Chief Justice James H. Brickley, Justices Charles L.
Levin, Michael F. Cavanagh, Patricia J. Boyle, Dorothy Comstock Riley, Conrad
L. Mallett, Jr., Elizabeth A. Weaver. RILEY, J. (concurring). WEAVER, J.
(concurring in the result only). CAVANAGH, J. (concurring). LEVIN, J.
(dissenting).
OPINIONBY: JAMES H.
BRICKLEY
OPINION:
[*132]
[**481] Opinion
BEFORE THE ENTIRE BENCH
BRICKLEY, C.J.
In this case we decide whether the decisions of the tri-county
hearing panel and the Attorney Discipline Board to reinstate petitioner's
license to practice law are supported by proper evidence on the whole record. We believe that a
review of the entire record does not support the decision of the
hearing panel or the Attorney Discipline Board to reinstate petitioner Robert McWhorter to
the
practice of law in this state at this time. We conclude that petitioner has not
spent adequate time outside the
supervision of
parole authorities sufficient
[***2] to demonstrate that he
[*133] has a proper understanding of and attitude toward the standards imposed on
members of the bar or that he will conduct himself in conformity with those
standards. We therefore would reverse the decision of the Attorney Discipline
Board and deny Mr. McWhorter's petition for
reinstatement, and would hold that petitioner may not reapply for
reinstatement until June 28, 1997, five
years from the date of his release from federal
parole.
I
In December 1978, Robert McWhorter was found guilty in federal court of a
ten-count indictment for the offense of aiding and abetting the
manufacture of methamphetamine.
21 USC 841(a)(1),
18 USC 2(a), and
21 USC 841(b)(1)(B). He was sentenced to five years imprisonment with a special
parole term of two years. As a result of this conviction, the Attorney Grievance
Commission filed a formal complaint against petitioner in January, 1979. n1
Petitioner was
disbarred by order filed June 8, 1979. However, the order of
disbarment was later vacated by notice dated September 15, 1980, because the United
States Court of Appeals for the Sixth Circuit vacated the decision and remanded
the case for trial. n2
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n1 The formal complaint was dated January 10, 1979, charging petitioner with
violation of GCR 1963, 953(1) to (5), GCR 1963, 969, and Canon 1 of the Code of
Professional Responsibility, DR 1-102(A)(1), (3) to (6).
[***3]
n2 Respondent remained suspended, however, as a result of an order of an Ingham
County
hearing panel filed on
August 5, 1977. In that proceeding, petitioner was suspended from the
practice of law for a period of 121 days for
misconduct in handling client funds. This Court ultimately affirmed the order of
discipline.
State Bar Grievance Administrator v McWhorter (On Rehearing), 405 Mich. 563, 407 Mich 278, 282;
284 N.W.2d 472 (1979).
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Meanwhile, petitioner was
convicted in Kalamazoo Circuit Court on May 29, 1980, for an unrelated
[*134]
incident of kidnapping,
MCL 750.349; MSA 28.581, and
conspiracy to kidnap,
MCL 750.157a; MSA 28.354(1). As a result, a second formal complaint was filed on June 20,
1980, charging petitioner with violation of GCR 1963, 953(2) to (5), and Canon
1 of the Code of Professional Responsibility, DR 1-102(A)(3) and (4). The
convictions arose out of the abduction of David Nixon from McWhorter's
[**482] law office. The kidnapping was arranged by petitioner in order to extort money
for the payment of McWhorter's legal services. Petitioner's
license to practice law was ultimately
[***4] revoked, effective February 24, 1981, as a result of these convictions.
After remand on the federal charges, on October 3, 1980, petitioner was
convicted of drug-related offenses in the United States District Court for the Western
District of Michigan, Southern Division.
A jury found petitioner guilty of
conspiracy to import cocaine into the United States, aiding and abetting the
manufacture of methamphetamine, and using a communication facility, i.e., a telephone, to facilitate the
manufacture of methamphetamine. The jury also
convicted McWhorter of
conspiracy to manufacture, possess with intent to distribute, and distribute
methamphetamine.
21 USC 841(a)(1). Petitioner was sentenced to ten years imprisonment with a two-year
special
parole term. n3
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n3 Petitioner was released from federal
parole on June 28, 1992.
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The federal convictions arose out of petitioner's attempt to finance a
drug-smuggling trip to South America to purchase cocaine and marijuana.
McWhorter and an undercover Drug Enforcement Administration
[***5] agent met and discussed McWhorter's drug-smuggling scheme and his contacts
with various drug sources. The DEA agent told
[*135] McWhorter that he was interested in chemical
drugs, and McWhorter responded that he knew a chemist who would manufacture
drugs. Additionally, McWhorter offered to render legal services to the
undercover agent, proposing to set up a strawman chemical company in order to
make detection of the drug scheme more difficult. On appeal, McWhorter
contended that he was involved in only one drug
conspiracy, i.e., the manufacturing of
methamphetamine in order to finance the South American drug-smuggling scheme. The United
States Court of Appeals for the Sixth Circuit rejected his argument and
affirmed the convictions. n4
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n4
United States v McWhorter, 705 F.2d 459 (CA 6, 1982).
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Petitioner served
prison terms for both his federal and state convictions. He was released on
parole in 1985 and sent to a halfway house in Grand Rapids for the following two
months. On June 28, 1992, he was released from
[***6] federal
parole. Approximately three months before being released from federal
parole, petitioner filed a petition for
reinstatement of his
license to practice law in Michigan.
A hearing was held by the tri-county
hearing panel and it was determined that petitioner had established the requirements for
reinstatement pursuant to MCR 9.123(B) by
clear and convincing evidence. Petitioner was therefore
reinstated with conditions, including payment of expenses, continuance of weekly therapy
sessions, maintenance of church activities, and monitoring by a licensed
attorney every two months for one year.
The Attorney Grievance Commission filed a petition for review of the hearing
panel's decision with the Attorney Discipline Board. Petitioner filed a cross
petition for review, requesting that the conditions imposed by the
hearing panel be removed.
[*136] The
Attorney Discipline Board remanded the case to the
hearing panel, stating that there was not
"sufficient evidence in the record upon which to evaluate the nature and scope
of the 'supervision of federal authorities' . . . ." In May, 1994, the Attorney Discipline Board concluded that the monitoring of
petitioner by
parole authorities was minimal
[***7] and issued an order modifying the hearing panel's order of
reinstatement. The Attorney Discipline Board
reinstated petitioner and removed the conditions imposed by the
hearing panel. The Attorney Grievance Commission filed an application for leave to appeal,
requesting review of the Attorney Discipline Board's decision. We granted leave
to appeal n5 and now reverse.
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n5
447 Mich 1202 (1994).
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II
We review the decision of the
hearing panel and the Attorney Discipline Board
"for
[**483] proper evidentiary support on the whole record." n6
Grievance Administrator v August, 438 Mich 296, 304;
475 N.W.2d 256 (1991). n7 We simultaneously recognize that
"the power to regulate and discipline members of the bar rests ultimately with
this Court pursuant to constitutional mandate."
Id. at 304. n8 A
[*137]
license to practice law is
"a continuing proclamation by the Supreme Court that the holder is fit to be
entrusted with professional and judicial matters and to aid in the
administration of justice as an attorney and counselor
[***8] and as an officer of the court." MCR 9.103(A). Cognizant of this responsibility, we review the decisions of the
hearing panel and the Attorney Discipline Board to reinstate petitioner to determine if they
are supported by the record as a whole.
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n6 The record
"must include a list of docket entries, a transcript of testimony taken, and all
pleadings, exhibits, briefs, findings of fact, and orders in the proceeding." MCR 9.122(D).
n7 See
In re Grimes, 414 Mich 483;
326 N.W.2d 380 (1982);
In re Freedman, 406 Mich 256;
277 N.W.2d 635 (1979). See also
State Bar Grievance Administrator v Estes, 392 Mich 645, 649-650;
221 N.W.2d 322 (1974), reviewing this Court's refusal to
"substitute [its] judgment 'for that of the panel below which had an opportunity
and a mandate not only to garner evidence of
misconduct but to observe and assess the demeanor and credibility of the witnesses,'" citing
State Bar Grievance Administrator v Estes, 390 Mich 585, 597;
212 N.W.2d 903 (1973).
n8 See Const 1963, art 6,
§ 5; See also Grimes, n 7 supra at 489-490, stating
"it is this Court, however, that has ultimate responsibility to oversee the
conduct of the . . . members of the State Bar, and to keep unsullied the
reputation of the profession."
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Footnotes- - - - - - - - - - - - - - - - -
[***9]
A
In order to be
reinstated, petitioner must establish that he is eligible for
reinstatement by
clear and convincing evidence, by proof that he has satisfied the criteria set forth in MCR 9.123(B)(1) to
(7): n9
(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) taking into account the nature of the
misconduct
[*138] which led to the
revocation or suspension, he or she nevertheless 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
[***10] 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 . . . .
The record appears to support both the hearing panel's and the Attorney
Discipline Board's determination that petitioner has complied with
subrules 1 to 5. We are therefore concerned only with whether the record as a whole
supports the conclusion that petitioner has established the requirements set
forth under
subrules 6 and 7. n10
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n9 We do not consider MCR 9.123(B)(8) and (9) because they are not applicable
in the present case.
n10 Although each requirement under MCR 9.123(B) is interrelated, each
subrule evaluates a different aspect of petitioner's eligibility. In this manner, we
held in
August, supra at 310 that
"subrule 6 is primarily directed to the question of the applicant's ability,
willingness and commitment to conform to the standards required of members of
the Michigan State Bar.
Subrule 7 shifts the focus to the public trust which this Court has the duty to guard."
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[***11]
We initially note that the decision whether to reinstate a
disbarred attorney is a balancing process. Moreover, we conclude that a proper analysis
of
subrules 6 and 7 requires
[**484] the balancing of several factors. n11 In reviewing the various factors, we
recognize that no one factor is conclusive, but,
[*139] rather, each must be evaluated in light of the others. Specifically, we must
consider whether petitioner has
spent
sufficient time outside the
supervision of
parole authorities to clearly and convincingly establish that he has satisfied the
requirements of
subrules 6 and 7.
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n11 Quoting
In re Raimondi, 285 Md 607, 618;
403 A.2d 1234 (1979), we have previously summarized this balancing process in
August, supra at 307, stating:
"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."
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[***12]
B
The passage of time, by itself, is not sufficient to support
reinstatement. n12 The relevant inquiry is whether petitioner has
spent an appreciable time outside the
supervision of
parole authorities in order for the
hearing panel to fully evaluate the
disbarred attorney's present ability to comport with the
fitness requirements. See
In re Reinstatement of Callanan, 440 Mich 1207;
487 N.W.2d 750 (1992); see also
August, supra. Moreover, the
five-year period after which a
disbarred attorney may petition for
reinstatement is but
"a minimum period in which
rehabilitation may occur following
revocation of the
license to practice law; the passage of five years in no way guarantees eligibility for
reinstatement."
Id. at 310. In
Callanan, supra at 1207, this Court held by order that
"the
misconduct that led to the
revocation of the petitioner's
license to practice law was substantial and, because the petitioner had
spent little or no time outside the
supervision of federal authorities since his license was revoked, it was not possible for
the
hearing panel and the Attorney Discipline Board to determine the present
fitness of the applicant for readmission."
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n12 See
In re Brown, 166 W Va 226, 235;
273 S.E.2d 567 (1980), stating:
"Most courts hold that the mere passage of time alone is insufficient to warrant
reinstatement."
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[***13]
In
August, an attorney was
disbarred after he was
convicted of attempting to defraud the United
[*140] States by conspiring with a court clerk in the United States Bankruptcy Court
for the Eastern District of Michigan to manipulate the blind-draw system of
assigning judges. n13 In an attempt to avoid a judge known to carefully examine
and reduce attorney fee awards,
August and the clerk arranged the assignment of judges so that
August's firm avoided the judge in a significant number of cases.
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n13
August was
convicted under
18 USC 371 of conspiring to defraud the United States of the due administration of
justice and under
18 USC 1503 of impeding the
due administration of justice and attempting to influence a court clerk in the
discharge of her official duties. Id. at 299.
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August was imprisoned for approximately one year and was transferred to a halfway
house. He remained there until November 19, 1985, when the district judge
reduced his sentence to time already served.
August filed a petition for
reinstatement
[***14] of his
license to practice law in October, 1988. The Wayne County
hearing panel denied his request. The Attorney Discipline Board held that
August was eligible for
reinstatement.
438 Mich 302-303. On appeal to this Court, we remanded the case to the Attorney Discipline Board
to reexamine whether the petitioner could be
recommended to a position of trust as a member of the bar. Significantly, we held that the
hearing panel is not limited to a choice between
reinstatement and
permanent
disbarment. Rather, we stated that a third
alternative exists where it is determined that a sufficient period of time has
not
elapsed to judge whether the petitioner may be
recommended for
reinstatement. n14
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n14 This Court held:
Finally, we do not agree with the board's assessment that the
reinstatement criteria allow only two possibilities: that petitioner be now readmitted or
forever barred from the
practice of law in this state. A third alternative is illustrated in this case, where the
hearing panel determined that petitioner
"could not now be
safely
recommended as a person of trust." [Id. at 312-313.]
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[***15]
[*141]
[**485] Petitioner in the present case applied for
reinstatement three months before his release from his federal
parole. The Attorney Discipline Board remanded the case to the
hearing panel to determine the nature and scope of the federal
parole authorities'
supervision. The board held that petitioner was not subject to rigid authority during his
final period of
parole.
n15 However, the critical consideration is not necessarily the extent of
supervision, but rather the fact that petitioner was under the
supervision of
parole authorities at the time he applied for
reinstatement. Although in these proceedings the nature and scope of
supervision may be relevant, the mere fact that petitioner had not been away from the
supervision of
parole authorities greatly influences the determination whether he has sincerely and
sufficiently demonstrated that he will be able to understand and operate within
the standards of the bar. Therefore, it is only after a petitioner has
spent
sufficient time outside the control of
parole officers that the
hearing panel or the Attorney Discipline Board is able to determine whether the petitioner
has been rehabilitated and may therefore be
safely
recommended
[***16] for
reinstatement. Although he may not have been subject to strict scrutiny by
parole authorities, petitioner was still serving his
parole and, upon petition for
reinstatement, must demonstrate his honorable behavior outside such authorities for a period
that
[*142] would enable this
Court to
safely recommend him to the public. n16 To prevent the petitioner's immediate
reapplication in the present case, we hold that petitioner is not eligible for
reinstatement until June 28, 1997, five years from the date of his release from federal
parole.
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n15 The Attorney Discipline Board stated:
The testimony of the
parole officers established that his reporting on a monthly basis eventually
consisted of little more than perfunctory meetings during which the petitioner
confirmed his continued residence and employment in Kalamazoo.
n16 We note that even though a period of time has now
elapsed since petitioner was under the
supervision of
parole authorities, he has been involved in his petition for
reinstatement since his release from
parole. Therefore, we are equally unable to
safely judge whether petitioner has now been rehabilitated--even though some time has
elapsed outside the
supervision of
parole authorities--because his actions have been under similar, if not heightened,
scrutiny
by the Attorney Grievance Commission, the
hearing panel, and the Attorney Discipline Board.
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[***17]
We borrow this time span from MCR 9.123 and analogize it to the present case.
For the same reasons, five years is the minimum period after which a
disbarred attorney may be eligible for
reinstatement, we would hold that it is a sufficient period outside the
supervision of
parole authorities and the contemplation of petition for
reinstatement to fully evaluate his
fitness to practice law. In
August, supra at 310, this Court stated that five years was the minimum time in which a petitioner
could apply for
reinstatement, but in no way guaranteed eligibility for
reinstatement. In accord with this decision, even though five years have
elapsed since petitioner's
disbarment, we find that he is not eligible for
reinstatement and would impose this additional period of time to review his
fitness. We are persuaded that this addresses the problem
identified by one commentator:
"The
disbarred attorney may file another petition at a later date. In light of this, it would
be helpful if the rules provided a minimum spacing between subsequent petitions
to prevent a lawyer whose petition is denied from immediately filing another
petition." Martin, Dean
& Webster, Michigan Court Rules
[*143] Practice
[***18] (3d ed), p 579, author's comment to MCR 9.123.
We further note that petitioner should not automatically be entitled to
reinstatement at the expiration of five years; it is merely the minimum time before he
should be permitted to apply for
reinstatement because more time may be necessary to demonstrate his
fitness.
August, supra. If petitioner chooses to petition again for
reinstatement after the specified date, he would be subject to a full review, including
consideration whether he should be subject to
permanent
disbarment.
III
We conclude that petitioner has not
spent
sufficient time away from the
authority of
[**486]
parole officers to demonstrate by
clear and convincing evidence that he may be
safely
recommended to the public, the courts, and the
legal profession as a person fit to be consulted by others or to represent them and act in
matters of trust and confidence. MCR 9.123(B)(7). Nor has
sufficient time passed in order that he may demonstrate a proper understanding of and attitude
imposed on members of the bar pursuant to MCR 9.123(B)(6). We therefore would
reject petitioner's application for
reinstatement and would hold that he may not reapply for
reinstatement until June
[***19] 28, 1997, five years from the date of his release from federal
parole. We therefore would reverse the decision of the Attorney Discipline Board.
James H. Brickley
Conrad L. Mallett, Jr.
CONCURBY: DOROTHY COMSTOCK
RILEY; ELIZABETH A.
WEAVER; MICHAEL F.
CAVANAGH
CONCUR:
BEFORE THE ENTIRE BENCH
RILEY, J. (concurring).
We agree with Justice Weaver's assessment that this record calls for the
permanent
disbarment of Mr. McWhorter. However,
[*144] in the absence of a majority recognizing the proposition that there should be
"permanent"
disbarment, with no opportunity ever to reapply, we join in the ruling of the lead opinion
imposing a
five-year waiting period following a period of
parole
supervision.
Dorothy Comstock Riley
Patricia J. Boyle
BEFORE THE ENTIRE BENCH
WEAVER, J. (concurring in the result only).
While I concur in the result of continuing
disbarment reached by the lead opinion, I write separately because I would permanently
disbar petitioner Robert McWhorter. The thorough recitation in the lead opinion
of the facts that led to petitioner's suspensions from practice,
disbarment, and criminal convictions can leave no doubt that he cannot be
safely
recommended
[***20] to the
"public, the
courts, and the
legal profession." n1 Nor am I convinced that petitioner has now or ever will have a
"proper understanding of the attitude toward the standards that are imposed on
members of the bar and will conduct himself . . . in conformity with those
standards." n2
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n1 MCR 9.105 and MCR 9.123(B)(7).
n2 MCR 9.123(B)(6).
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This Court is charged with the responsibility of overseeing the conduct of the
membership of the State Bar and has the power to
"make any order it deems appropriate . . . ." n3 It has the power to impose, as proposed by the majority, an arbitrary
waiting period before petitioner can file for
reinstatement. However, what logic there is in imposing an arbitrary waiting period in this
case is lost because the petitioner will remain under our scrutiny and
therefore will probably attempt to conform his conduct to our standards until
he reaches his goal of readmittance.
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n3 MCR 9.122(E).
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[***21]
[*145] No
matter what the duration of petitioner's
disbarment, the conduct that led to it will not change. While this petitioner was an
attorney, he was
convicted by a jury of
conspiracy to import cocaine, unlawful
manufacture of methamphetamine, using a telephone to facilitate the
manufacture of methamphetamine,
conspiracy to possess with intent to distribute
methamphetamine, and kidnapping a client to extort money. He used his legal training to set up
a strawman corporation to conceal the drug
conspiracies. He had also previously been suspended for mishandling client funds. Regardless
of the sympathy or compassion we may have for the situation petitioner
McWhorter has made for himself, ever readmitting him to the Michigan State Bar
would make a mockery of this Court's duty to protect the public and the
profession.
I do not, however, believe that it is practical or advisable to attempt to
enumerate types of conduct or categories of crimes that should automatically
result in
disbarment. This Court should continue to review petitions for
reinstatement case
by case. In this case, the totality of this petitioner's conduct cannot be
ignored. The finality of
permanent
disbarment is in the best
[***22] interests of the
[*146] public, the courts, and the
legal profession. This finality will also allow petitioner to go forward with his life plans,
knowing he need never consider practicing law in Michigan again.
Elizabeth A. Weaver
BEFORE THE ENTIRE BENCH CAVANAGH, J. (concurring).
I agree with much of the lead opinion. For example, I agree that the petitioner
has
[**487] not
spent enough time outside the
supervision of
parole authorities to demonstrate that he understands, and will conform to, the
standards imposed on members of the bar. I agree that he cannot now be
safely
"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 . . . ." MCR 9.123(B)(7). I also agree that it would be
helpful if the rules provided a minimum spacing between subsequent petitions.
I write separately, however, because I do not feel that a published opinion is
the appropriate vehicle to set that minimum spacing at five years. I do not
necessarily disagree with the
five-year ban; I merely believe that the proper way to effect the change is by amending
the court rules. The same can be
[***23] said regarding the issue of
permanent
disbarment. If such a penalty is to be created, it should be done through the rule-making
process provided in MCR 1.201.
The primary benefits of pursuing such a course are that it provides an
opportunity for any interested parties to comment on the proposed changes, and
it would let
disbarred attorneys know exactly where they stand vis-a-vis
reinstatement. Moreover, amending the court rules is superior to constantly interfering with
the discretionary decisions of the Attorney Discipline Board each time we feel
a
wrong decision is made.
Michael F. Cavanagh
DISSENTBY: CHARLES L.
LEVIN
DISSENT:
BEFORE THE ENTIRE BENCH
LEVIN, J. (dissenting).
The question presented is whether Robert A. McWhorter should be
reinstated as a member of the state bar. McWhorter was
disbarred following his convictions of federal and state crimes. The
hearing panel ordered
reinstatement with conditions. The Attorney Discipline Board affirmed. n1
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n1 McWhorter appealed the conditions of
reinstatement. They were eliminated by the board without contest by the Grievance
Administrator.
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[***24]
The majority concludes that McWhorter should not now be
reinstated because
sufficient time has not
elapsed since he was under the
supervision of
[*147]
parole officers. The majority imposes a
five-year period after which McWhorter may reapply for
reinstatement. I would affirm the order of
reinstatement.
I
McWhorter was
convicted in the United States District Court for the Western District of Michigan of
conspiracy to import cocaine, unlawful manufacture of
methamphetamines, and
conspiracy to distribute
methamphetamines, and was sentenced to ten years imprisonment. In circuit court, McWhorter was
convicted of kidnapping and
conspiracy to kidnap, and was sentenced two to five years imprisonment. n2 He served the
federal and state sentences concurrently in federal
prison and was paroled in June, 1985. He remained on
parole until June, 1992.
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n2 See
People v Buckey/McWhorter, 424 Mich 1;
378 N.W.2d 432 (1985), and
People v McWhorter (On Remand), 150 Mich. App. 826;
389 N.W.2d 499 (1986).
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McWhorter was
[***25]
disbarred effective February 24, 1981. After his release from
prison, he worked as an automobile salesman, and then started a legal research
business. He petitioned for
reinstatement in April, 1992, before completion of his
parole. In April, 1993, the
hearing panel
reinstated McWhorter with conditions. These
included continued psychotherapy, regular attendance at church, and
supervision by a local attorney. n3 The panel majority said:
[*148] We are persuaded on the whole record, that Mr. McWhorter has established by
clear and convincing evidence that he
[**488] should be
reinstated to the
practice of law. Mr. McWhorter has become an active member of his church. He had been able to
rebuild his relationship with his wife, daughter and son. He has established a
productive business and appears to be handling the pressures associated with
it. He has resumed a life in the community in spite of the opposition he has
faced. n4
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n3 McWhorter presented testimony from numerous witnesses, including his pastor,
family members, and other local attorneys who testified to the changes in his
personality and his current moral
fitness and character. His pastor discussed McWhorter's extensive and sincere (in the
pastor's opinion) involvement in church activities. McWhorter's wife and
children related the changes in McWhorter's personality and the improvement
in their relationships with him. Local attorneys who knew McWhorter or used his
legal research services testified to his competence and skill. His therapist
testified regarding the progress he had made in therapy since he started while
on
parole in 1986. McWhorter testified, and acknowledged that numerous personal problems
affected his judgment at the time the crimes were committed, including
alcoholism and emotional difficulties.
[***26]
n4 The dissenting member of the panel said that
"McWhorter has made significant strides in becoming a contributing member of our
society, but I do not believe he has yet established that he should be
reinstated to the honorable
practice of law at this time."
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The Grievance Administrator appealed the
reinstatement order, claiming that McWhorter had failed to establish compliance with MCR
9.123(B)(6) n5 and (7) n6 by
clear and convincing evidence and that
sufficient time had not
elapsed since McWhorter's release from
parole to properly judge his
rehabilitation and
fitness to practice law. In response to this Court's peremptory reversal in
In re Reinstatement of Callanan, 440 Mich 1207, 487 N.W.2d 750 (1992), the board remanded this case to the
hearing panel for further testimony concerning the
[*149] nature and extent of McWhorter's
supervision while on
parole. In May, 1994, the board affirmed the hearing panel's order and eliminated the
conditions.
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n5 Under MCR 9.123(B)(6), a petitioner must establish by
clear and convincing evidence that
"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."
[***27]
n6 MCR 9.123(B)(7) provides that the board must conclude by
clear and convincing evidence that the petitioner
"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 . . . ."
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The board, citing this Court's decision in
Grievance Administrator v August, 438 Mich 296;
475 N.W.2d 256 (1991), observed that eleven years had
elapsed between
revocation of McWhorter's license and his petition for
reinstatement, and more than fourteen years since McWhorter committed the acts that resulted
in the convictions. Relying on its interpretation of
August, the board rejected the Grievance Administrator's claim that the
seriousness of McWhorter's crimes alone requires that he never be
reinstated as a member of the state bar. It determined that
sufficient time had
elapsed to assess McWhorter's
fitness to practice law, distinguishing the circumstances in
[***28] the instant case from those presented in Callanan. The board concluded that
the
hearing panel's determination was based on ample evidence and
"was an appropriate application of the subjective judgment which is inherent to
a determination of eligibility for
reinstatement under MCR 9.123(B)."
II
In
August, supra, this Court held that
"the nature of the offense and the time
elapsed since its commission and since
disbarment are relevant and important considerations in determining whether a
disbarred attorney should be
recommended to the position of public trust that is held by members of the Michigan State
Bar." n7 Thus,
"an attorney may be denied readmission on the grounds that
sufficient time has not passed to determine the present
fitness of the applicant for readmission.
[*150] Such a denial should not be deemed a
permanent
disbarment. n8
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n7
Id. at 313-314.
n8
Id. at 314. The majority acknowledged that the
seriousness of the underlying criminal conduct should be considered in deciding whether a
disbarred lawyer should be
reinstated, distinguishing between conduct
unrelated to the
practice of law and conduct involving the corruption of the administration of justice.
Id. at 310. The majority also noted that some jurisdictions hold that certain conduct may
be so egregious that
reinstatement should be precluded; however, the Court declined to so rule on the facts
presented.
Id. at 313.
The Court remanded for a determination whether
sufficient time had
elapsed to assess
August's
fitness and a majority of the board panel subsequently ordered
reinstatement. However, the Court issued a peremptory reversal of the order and denied the
petition for
reinstatement on the basis of reasoning of the dissenting opinion.
In re Reinstatement of August, 441 Mich 1207, 495 N.W.2d 143 (1993).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***29]
[**489] In Callanan, following the
August decision, the Court peremptorily reversed the board's
reinstatement order, stating,
"the
misconduct that led to the
revocation of the petitioner's
license to practice law was substantial, and, because the petitioner had
spent little or no time outside the
supervision of
federal authorities since his license was revoked, it was not possible for the
hearing panel and the Attorney Discipline Board to determine the present
fitness of this applicant for readmission." n9
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n9
Id. at 1207. Both the
hearing panel and the ADB ordered
reinstatement. Callanan had been released from confinement in November, 1988, almost four
years before the Court's October 30, 1992, order.
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Both
August and Callanan suggest that the length of time following
disbarment and unsupervised release into society, in addition to the
seriousness of the underlying
misconduct, is relevant to the determination whether and when, if at all, the
disbarred lawyer should be
reinstated. The Grievance
[***30] Administrator argues, and one of my colleagues would hold, that McWhorter's
crimes should permanently prevent his
reinstatement. n10
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n10 Although this Court in
August, supra at 313, n 11, noted that certain states have permanently precluded
reinstatement under some circumstances, some of these rules have
changed since
August was decided. The District of Columbia Court of Appeals overruled
In re Kerr, 424 A.2d 94 (DC App, 1980), in
In re McBride, 602 A.2d 626 (DC App, 1992), in which the court revisited the District of Columbia Code
provision related to
disbarment for acts of moral turpitude and concluded that it should not be interpreted to
require
permanent
disbarment.
602 A.2d 640-641.
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[*151] In most jurisdictions
reinstatement is possible, even in egregious circumstances, unless a court rule or law
precludes
reinstatement. The Washington Supreme Court ordered
reinstatement in a case involving the misuse of client funds, stating,
We have based this decision upon the long-standing doctrine of this
[***31] court and of virtually every other jurisdiction that
disbarment is not a
permanent
disability. Upon a proper showing of
rehabilitation, an attorney may be
reinstated. n11
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n11
In re Rosellini, 108 Wash 2d 350, 364;
739 P.2d 658 (1987). See also
In re Robbins, 172 Ariz 255, 256;
836 P.2d 965 (1992);
Florida Bar re Hipsh, 586 So 2d 311, 314 (Fla, 1991) (distinguishing between
disbarred and permanently
disbarred, but still permitting application for
reinstatement by leave of court).
The West Virginia Supreme Court observed:
The concept of
rehabilitation cannot be framed around a set of specific principles but will vary depending
on the particular facts of a given case.
Rehabilitation, ultimately, is demonstrated by a course of conduct that enables the Court to
conclude there is little likelihood that after such
rehabilitation is completed and the
applicant is readmitted to the
practice of law he will engage in unprofessional conduct. [In re Brown, 166 W Va 226, 234;
273 S.E.2d 567 (1980).]
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[***32]
McWhorter provided ample evidence in support of the hearing panel's and the
board's determination. n12 The record, read as a whole, demonstrates that
McWhorter has the moral and professional
fitness to practice law again in this state. In a similar case,
In re Reinstatement of Wegner, 417 N.W.2d 97, 98 (Minn, 1987), n13 the petitioner had
[*152] been
convicted of
conspiracy to smuggle marijuana in 1975, was
disbarred in December, 1979, was released from
prison in 1980, and entered treatment for alcoholism in 1982. In granting
reinstatement, the Minnesota Supreme Court observed that the petitioner had acknowledged the
wrongfulness of his conduct, the
misconduct had occurred twelve
years before the court's decision, and the petitioner had been released from
prison for 7-1/2 years and had been chemical-free for five years. Further, the
petitioner offered substantial evidence of a change for the better in
character. n14 The court said:
[**490] We recognize the severity of petitioner's prior
misconduct. Indeed, we are not quick to reinstate a lawyer who committed such a
reprehensible crime, which led to
disbarment in the first instance. However, petitioner has demonstrated by
clear
[*153] and convincing
[***33] evidence that he has had a change in his professional moral character. n15
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n12 N 3 supra.
n13 See also
In re Trygstad, 472 N.W.2d 137 (Minn, 1991) (reinstating an attorney who had been
disbarred for 7-1/2 years on the basis of his conviction for the sale of cocaine to an
undercover officer).
n14 Wegner presented evidence that alcohol had been a
serious problem in his life at the time of his
misconduct, that he had undergone a marked change in his personality since
disbarment, that he had been a conscientious and diligent worker in his employment after
release from
prison, that he participated in Alcoholics Anonymous and had abstained from alcohol
since 1982, and that a psychiatrist had determined that he had made a complete
psychological
rehabilitation since 1978 with no chance that he would repeat his illegal behavior. Id.. at
99.
Other courts have concluded that petitioners who had offered substantial
evidence of their good conduct and treatment since
disbarment should be
reinstated. In Rosellini, n 11 supra, the Washington Supreme Court noted that the
petitioner had sought professional counseling, worked in increasingly
responsible positions, received letters praising his integrity and honesty from
employers, and participated in a wide variety of community activities,
including his church and his children's schools. Id. at 359. See also
In re Moynihan, 113 Wash 2d 219;
778 P.2d 521 (1989) (reinstatement was ordered for a lawyer who had been
disbarred for misuse of client funds on the basis of evidence that he participated in
alcohol treatment and community activities, as well as letters from members of
the community testifying regarding his character and professional reputation);
Robbins, n 11 supra (reinstatement was ordered for a lawyer
disbarred for misuse of client funds on the basis of evidence that he had worked
diligently to reform himself and had been a good citizen for more than a
decade).
[***34]
n15 Id. at 100. The court imposed several conditions on
reinstatement, including continued sobriety.
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In emphasizing the
seriousness of the underlying offenses committed by McWhorter, the majority ignores other
relevant factors that should be considered in deciding whether to order
reinstatement.
III
Sufficient time has
elapsed
since McWhorter's offense and his release from incarceration to determine his
moral
fitness to practice law, in compliance with MCR 9.123(B)(7). McWhorter was
convicted for acts that occurred over seventeen years ago, he was
disbarred fourteen years ago, and was released from
prison ten years ago. He has been free from
parole
supervision for almost three years. His
parole officers reported that he fully complied with the conditions of
parole. n16
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n16 In Callanan, it was unclear how much time had passed since Callanan had
been released from
parole, although it appears to have been for far less time than in the instant case.
In
August, the petitioner waited three years after release from
prison to request
reinstatement, as distinguished from seven in the instant case.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***35]
The majority concludes that
"the mere fact that petitioner had not been away from the
supervision of
parole authorities [at the time of
petitioning for
reinstatement] greatly influences the determination whether he has sincerely and sufficiently
demonstrated that he will be able to understand and operate within the
standards of the bar." n17 As other courts have concluded in similar circumstances, requiring
McWhorter to wait five years to reapply at some future time serves little or no
[*154] useful purpose. n18 It is undisputed that McWhorter complied with all the
conditions of his
parole and that no adverse incidents were reported by his
parole officers. By requiring McWhorter to wait additional time before reapplying,
the majority summarily discounts what is indisputably a solid record of
rehabilitation since release from
prison under the guise that McWhorter was required to comply with
parole regulations. This approach ignores the quality of the substantial evidence
presented to the
hearing panel and the Attorney Discipline Board.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n17 Slip op, p 12.
n18 See
Wegner, 417 N.W.2d 97 at 99;
Rosellini, n 11 supra at 360; cf.
In re Avcollie, 43 Conn Supp 13, 22;
637 A.2d 409 (1993) ("A redemptive and rehabilitative life requires the passage of time for
documentation").
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***36]
Finally, I agree with Justice Cavanagh that the imposition of a
five-year period from release from
parole
supervision should be done only by court rule under the Court's rule-making authority. By
creating this new requirement at this time, the majority avoids the publication
and comment procedure and deprives the profession of an opportunity to comment
and suggest alternative approaches.
Charles L. Levin
