In Re Petition for Reinstatement to the Practice of Law of Richard J. Kadrie,
Petitioner.
C5-90-383
SUPREME COURT OF MINNESOTA
602 N.W.2d 868;
1999 Minn. LEXIS 839
December 9, 1999, Filed
PRIOR HISTORY:
[**1] Office of Appellate Courts. Supreme Court.
DISPOSITION: Indefinite suspension ordered.
SYLLABUS: Attorney indefinitely suspended from the practice of law for a minimum of five
years is entitled to reinstatement when he has demonstrated a moral change and
competency to return to the practice of law.
JUDGES: ANDERSON, RUSSELL, A., J., took no part in the consideration or decision of
this case.
OPINION:
[*869] Heard, considered, and decided by the court en banc.
PER CURIAM.
This appeal comes to us on the Lawyers Professional Responsibility Board
panel's January 14, 1999
recommendation to deny Richard J. Kadrie's petition for
reinstatement. On June 6, 1990, petitioner Kadrie was
indefinitely
suspended for forging a cashier's check, misappropriating client funds and
falsely stating that he held the funds in trust for a client.
See
In re Kadrie, 456 N.W.2d 717, 718-19 (Minn. 1990). The indefinite
suspension order did not allow petitioner to petition for
reinstatement for a minimum of five years.
See
id. at 719. Prior to his
suspension, petitioner had been placed on
probation for failing to maintain books and records for client trust funds and law
office funds; for
falsely certifying
[**2] that he
maintained such books and records; for failing to provide an accountant's
report to the Director of the Office of Lawyers Professional Responsibility in
a timely manner; for failing to produce books and records upon request by the
director; and for failing to cooperate with the supervising attorney appointed
by the Lawyers Professional Responsibility Board (LPRB).
See
id. at 718.
Pursuant to Rule 18 of the Rules on Lawyers Professional Responsibility, Kadrie
filed a petition for
reinstatement to the
practice of law. The director performed an investigation and submitted a report to a
three-member LPRB panel. The panel held a hearing on February 26, 1997, and
heard testimony from petitioner and a consulting psychologist, Dr. Paul
Reitman. The panel concluded that petitioner had not proven by
clear and convincing evidence that he had
"undergone such a moral change as now to render him a fit
person to enjoy the public confidence and trust once forfeited."
In re Swanson, 343 N.W.2d 662, 664 (Minn. 1984) (Swanson I). The panel then issued its findings of fact and conclusions, and
recommended against
reinstatement. Oral arguments were scheduled
[**3] in this court, but before they could be held a new complaint was filed against
petitioner with the director. The proceedings were remanded to the panel. The
director investigated the complaint and submitted a supplemental report to the
panel.
A second panel hearing was held on October 9, 1998. The panel found that the
new complaint had not been proven by
clear and convincing evidence. However, the panel concluded that petitioner's failure to satisfy a civil
judgment entered against him in 1991 for six years evidenced that he did not
understand the
wrongfulness of his conduct and had not
undergone a moral change. Further, the panel concluded that petitioner had
failed to demonstrate that he possessed the skills and knowledge needed to
practice law competently, and again
recommended that his petition for
reinstatement be denied.
We conclude that neither of the panel's conclusions are supported by the
record.
[*870] Accordingly, we reject the panel's
recommendation that petitioner's application for
reinstatement be denied and reinstate petitioner subject to the conditions set forth below.
I.
In
reinstatement cases this court conducts an independent review of the entire record before
making
[**4] its determination.
See
In re Maki, 536 N.W.2d 631, 632 (Minn. 1995). While the panel's
recommendation is duly considered, it is not binding. The responsibility for determining
whether a petitioner will be
reinstated rests with this court.
See, e.g.,
In re Williams, 433 N.W.2d 104, 104 (Minn. 1988) (reinstating petitioner where the panel
recommended denial).
The standard for determining whether a disbarred or
suspended
attorney should be
reinstated focuses on whether the attorney has demonstrated by
clear and convincing evidence that he has
undergone a moral change.
See
In re Wegner, 417 N.W.2d 97, 98 (Minn. 1987). This moral change must be such that if the petitioner were
reinstated,
"clients could submit their most intimate and important affairs to him with
complete confidence in both his competence and fidelity."
In re Herman, 293 Minn. 472, 476, 197 N.W.2d 241, 244 (1972). Evidence of a moral change
"must come not only from an observed record of appropriate conduct, but from the
petitioner's own state of mind and his values."
In re Swanson, 405 N.W.2d 892, 893 (Minn. 1987) (Swanson II).
However,
[**5] evidence of moral change is not our only consideration. Other factors bearing
on whether a petitioner should be
reinstated are: (1) petitioner's recognition of the
wrongfulness of his
conduct,
see
Swanson II, 405 N.W.2d at 893; (2) the length of time since the
misconduct and disbarment or
suspension,
see
In re Hanson, 454 N.W.2d 924, 925 (Minn. 1990); (3) the
seriousness of the original
misconduct,
see
In re Peterson, 274 N.W.2d 922, 926 (Minn. 1979); (4) the existence of physical or
mental illness or pressures that are susceptible to correction,
see
Wegner, 417 N.W.2d at 98-99;
In re Ossanna, 288 Minn. 541, 542, 180 N.W.2d 260, 261 (1970); and (5) petitioner's intellectual
competency to
practice law,
see
In re Strand, 259 Minn. 379, 381, 107 N.W.2d 518, 519 (1961).
The panel's conclusion that petitioner has not demonstrated moral change by
clear and convincing evidence is
supported primarily by its finding that petitioner
has not acted to
rectify the harm caused by his
misconduct, nor to atone for the moral failure it represented. Until the initial hearing
in this matter,
[**6] he resisted payment of damages awarded to his
former client. After the initial hearing, he satisfied the * * * judgment, but the
circumstances do not indicate a desire to
rectify or atone for harm he caused.
The damages in question arose out of a 1991
counterclaim against petitioner by a
former client. Petitioner sued the client for attorney fees stemming from petitioner's
representation of the client in a real estate transaction. The client brought a
counterclaim for fraudulent misrepresentation and negligence. The
former client was also the complainant in an earlier action which led to petitioner's
suspension. While petitioner's claim was dismissed due to his
misconduct, the
former client was awarded damages of $
33,200.95 in her
counterclaim. Though the judgment was rendered in 1991, petitioner did not satisfy it until
1997. The panel's conclusions indicate that petitioner's delay in satisfying
the judgment evinced that he had not recognized the
wrongfulness of his actions, and thus had not demonstrated
clear and convincing evidence of moral change. The record shows, however, that petitioner satisfied the
judgment as soon as he was financially able to do so. An affidavit submitted
[**7] by petitioner's employer with attached W-2 payroll records demonstrates that
petitioner could not have satisfied the
[*871] judgment until 1997, when he received a large bonus. Contrary to the panel's
findings, the record contains
clear and convincing evidence that when able the petitioner acted to
rectify the harm he caused his
former client.
Likewise, the record shows that petitioner has recognized the
wrongfulness of his actions. Petitioner repeatedly expressed
remorse for his
misdeeds at both panel hearings. While the panel found in the first hearing that
petitioner
"testified that he recognizes his
misconduct was a serious mistake, for which he is remorseful," it still concluded that he
"exhibits a limited understanding of the
wrongfulness of his conduct. His
remorse appears to be focused on the consequences to himself rather than on the harm
it caused to his clients and to the integrity of the legal profession." While this court defers to the credibility assessments of lower courts and
tribunals, in this case the panel's assessment seems to be rooted in its
concern about the judgment that remained unsatisfied for six years. As stated
above, the six-year delay was due more to petitioner's
[**8] financial situation than to a lack of
remorse. In fact, the record contains unrefuted evidence of petitioner's expressions of
remorse, n1 as well as Dr. Reitman's corroborating testimony that petitioner repeatedly
expressed regret for his actions in their sessions together. The record shows
that petitioner has demonstrated
clear and convincing evidence of his recognition of and repentance for the
wrongfulness of his
actions.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Among petitioner's expressions of
remorse are the following excerpts, taken from his testimony at the panel hearings:
"I was a disappointment to my fellow practitioners and also to the citizens and
I realize the severity of that and my responsibility to the people of the State
of Minnesota and the other people who
practice law";
"I think my conduct was disgraceful and I think I deserved the punishment that I
received";
"I'll have concerns for the rest of my life concerning that
misconduct. I think it's something I'll never forget."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The length of time since petitioner's
misdeeds and
[**9]
suspension also
weighs in favor of his
reinstatement. While our indefinite
suspension order allowed petitioner to apply for
reinstatement after five years,
see
Kadrie, 456 N.W.2d at 719, more than nine years have passed since his
suspension. It should be noted that a five-year
suspension exceeds
in duration most
discipline this court has ordered in cases concerning conduct of comparable gravity. For
example, in
In re Mack, 476 N.W.2d 893 (Minn. 1991), this court considered
reinstatement of an attorney who had, among other things, misappropriated client funds,
knowingly filed false interrogatory answers, and filed false tax returns.
See
id. at 893. The attorney was
suspended
indefinitely without eligibility for
reinstatement for at least 21 months.
See
id. at 894. Similarly, in
In re Porter, 472 N.W.2d 654 (Minn. 1991), an attorney who falsified will documents, swore
falsely under oath and misappropriated client funds was
suspended
indefinitely without eligibility for
reinstatement for at least six months.
See
id. at 655. We do not claim that petitioner's
suspension was too lengthy,
[**10]
only that it was not, in light of this court's precedent, too short.
As to the factor concerning the
seriousness of petitioner's
misconduct, the panel found at both hearings that the
misconduct was serious, as it
"involved dishonesty and deceit, betrayal of a client, disregard of professional
obligations, and failure to cooperate with
discipline processes." The director's brief argues that petitioner's
"misconduct struck at the heart of the administration of justice." We do not disagree with the panel's findings or the director's argument.
Petitioner's
misdeeds were indeed very serious. However, we note that the length of petitioner's
suspension was based on the
seriousness of his
misdeeds. As petitioner has
undergone the
discipline this court imposed for his actions, those actions, while serious, should not
bar his
reinstatement.
[*872]
Next we consider the evidence relating to the existence of physical or
mental illness or pressure susceptible to correction. The panel found at both hearings that
"although alcohol abuse and
personality disorder were present, neither explains the
misconduct, and their current absence does not assure against future
misconduct." This court has
[**11] noted that the existence of a physical or
mental illness, such as
alcoholism, that has been corrected or treated is a factor to be considered in
reinstatement proceedings.
See, e.g.,
In re Constantine, 258 Minn. 582, 584, 103 N.W.2d 196, 198 (1960). Indeed, the importance of addressing such problems in order to protect the
public cannot be denied. However, while the panel may be correct in finding
that petitioner's present sobriety does not ensure against future
misconduct, the successful treatment of his
alcoholism does indicate that the circumstances in which the
misconduct occurred have changed for the better.
In this case, petitioner suffered from
alcoholism at the time of his
misconduct. Petitioner provided the panel with two psychological assessments from Dr.
Reitman, one from 1996 and one from 1998. In both assessments, Dr. Reitman's
clinical opinion was that petitioner is sober and rehabilitated. In addition,
petitioner provided a
chemical health assessment performed by Vivian Hildebrandt, CCDC-R of the
Chemical Health Institute in 1996, which describes petitioner's
alcoholism as
"In Sustained Full Remission," indicating that he had been sober for at
[**12] least 12 months prior to assessment. Moreover, the director's representative
stated at the close of the first panel hearing that petitioner
"has recovered from the serious alcohol abuse that he engaged in in 1990." Petitioner's successful treatment of his
alcoholism
weighs against the likelihood of his committing further
misdeeds.
Petitioner has
undergone several other changes in his life since he was
suspended in 1990. First, while petitioner was in a difficult financial situation at the
time of his
suspension, he has been steadily employed by his present employer since 1991 and his
income has steadily increased. Second, Dr. Reitman testified at the first panel
hearing that prior to his
suspension in 1990, petitioner was depressed and
stressed by his marital problems. Petitioner and his wife have since divorced,
and petitioner is now in a stable relationship. Third, differences in
petitioner's
scores on
personality tests in 1990 and 1996 indicate a dramatic change in his
personality.
Petitioner took an MMPI test in 1990, approximately six months after petitioner
was
suspended. After reviewing the 1990 MMPI results, Dr. Reitman testified at both panel
hearings that the
[**13] results indicated that petitioner suffered from depression at that time. Dr.
Reitman testified further that petitioner's elevated
score on the
psychopathic deviant scale indicated that there was a likelihood that he had a
"real
personality disorder maladjustment." In contrast, on his 1996 MMPI, administered by Dr. Reitman, petitioner's
score on the
psychopathic deviant scale
"dropped to normal." Dr. Reitman testified that according to the
"research on the MMPI with psychopaths on
personality
disorders, [the
psychopathic deviant scale] rarely changes because it's so resistant to rehabilitation." Dr. Reitman concluded that the changed Scale IV
score
"really confirms, my final impression. This is not a man who has a
personality disorder." This change in
score indicates that petitioner's
"acting out was secondary to his
alcoholism and depression and that's what affected his judgment, not a pervasive pattern
of character moral madness." Therefore, on this evidence we conclude that the change in petitioner's
personality, his successful treatment for
alcoholism, and his changed financial and relationship circumstances
weigh in favor of his
reinstatement.
Finally, the panel found
[**14] that petitioner
"has not demonstrated that he possesses the skills and knowledge needed for [a
[*873] corporate] practice." The panel found that petitioner's previous practice was devoted primarily to
criminal law, and that he now plans to practice corporate law for his current
employer. Further, the panel found that petitioner has
"done little to maintain or
enhance his legal skills and knowledge" during his
suspension.
We have stated in the past that there is no fixed standard in
reinstatement proceedings by which we determine a petitioner's intellectual
competency to return to practice. For example, in
Strand this court
reinstated a 73-year-old petitioner who had not practiced law for more than 25 years.
See
Strand, 259 Minn. at 381, 107 N.W.2d at 519-20. Concerning his
competency to
practice law, this court stated that
it will obviously be difficult to establish intellectual qualifications to
practice law after an extensive period of exile from the profession. In such a case it
might be advisable for an applicant to make a showing of some systematic effort
to familiarize himself with current legal practice. However, there are no
definite
[**15] or formal standards established, and each case must be determined on the basis
of a judgment as to the individual
involved.
Id. at 381, 107 N.W.2d at 519.
In the instant case, petitioner has completed 130 hours of continuing legal
education since 1995, which is in excess of the required number of hours. Of
the completed hours, 53.5 concerned issues directly related to corporate
practice. Moreover, petitioner's job has allowed him to familiarize himself
with various aspects of corporate law. The panel found that his job involves
"arranging contracts with vendors, assigning legal matters to outside counsel,
and handling real estate matters." In
In re Trygstad, 472 N.W.2d 137, 139 (Minn. 1991), this court concluded that the petitioner was intellectually competent to
practice law seven years after being disbarred because
"he remained acquainted with legal matters during his * * * employment * * *,
and over the past few years he has accumulated 100 hours of CLE credits." Similarly, on the facts of this case, we
conclude that the petitioner has demonstrated his intellectual
competency to return to the
practice of law.
II.
[**16]
Petitioner's
misdeeds were very serious. However, Rule 18 of the Rules on Lawyers Professional
Responsibility allows for the
reinstatement of
suspended attorneys. This court has promulgated the criteria that must be satisfied for
a petitioner to be
reinstated. Here, the record demonstrates that petitioner has
undergone a moral change, recognized the
wrongfulness of his actions, successfully treated his
alcoholism, become gainfully employed, experienced a dramatic change in
personality, and is intellectually competent to return to the
practice of law. If the evidence in this case is deemed insufficient to allow for petitioner's
reinstatement, the rule and its accompanying proceedings would indeed be
"a cruel hoax."
Swanson I, 343 N.W.2d at 664.
We therefore hold that petitioner is entitled to
reinstatement, subject to the following conditions:
1. That he be placed on supervised
probation for two years;
2. That for two years he
practice
law only in a corporate setting and not return to private practice;
3. That at any time following his successful completion of two years'
probation, petitioner may, by affidavit, request authorization
[**17] of the court to engage in the solo
practice of law. At least one month prior to such request, petitioner shall notify the
Director's Office of his intention to seek authorization for solo practice, and
the director shall file a responsive affidavit which may, for good cause,
request a hearing on the appropriateness of petitioner's return to solo
practice;
[*874]
4. That within 90 days he complete an updated chemical dependency assessment
and mental health assessment, and follow the
recommendations of the assessments;
5. That he pay the cost of the director's prosecution.
It is so ordered.
ANDERSON, RUSSELL, A., J., took no part in the consideration or decision of
this case.
