In the Matter of Alger Hiss
[NO NUMBER IN ORIGINAL]
Supreme Judicial Court of Massachusetts
368 Mass. 447;
333 N.E.2d 429;
1975 Mass. LEXIS 1014
May 9, 1975, Argued
August 5, 1975, Decided
PRIOR HISTORY:
[***1]
Suffolk.
Petition filed in the Supreme Judicial Court for the county of Suffolk on
November 4, 1974.
The case was reserved and reported by
Reardon, J.
HEADNOTES:
Attorney at Law. Practice, Civil, Membership in the bar.
Supreme Judicial Court, Membership in the bar.
Evidence, Presumptions and burden of proof.
SYLLABUS: Conviction of perjury of a member of the bar of this Commonwealth and his
subsequent disbarment were
"conclusive evidence of his lack of moral character at the time of his removal
from office." [450-451]
This court cannot presently say that any offense is so grave that an attorney
disbarred therefor is automatically precluded from subsequently attempting to
demonstrate that he has achieved a
"present fitness," and has led a sufficiently exemplary life, to be reinstated as an attorney.
[451-455]
One who has been convicted of a crime and disbarred therefor will not be
disqualified for reinstatement to the bar solely because he continues to
protest his innocence of the crime. [455-459]
Repentance by one convicted of a crime and disbarred therefor, or lack of
repentance, is evidence to be considered in the evaluation of his character
[***2] upon his petition for reinstatement to the bar. [455-456]
Statement of factors to be considered in judging whether one who has been
convicted of a crime and disbarred therefor and seeks to be reinstated to the
bar
satisfies the standards for reinstatement set forth in S.J.C. Rule 4:01,
§ 18 (4),
365 Mass. 696 (1974), and has demonstrated the requisite rehabilitation since disbarment. [456-459]
With respect to a mature man who had been convicted of perjury, tainted by a
breach of confidence and trust, and had been disbarred and approximately
twenty-three years later petitioned for reinstatement to the bar, findings by
the Board of Bar Overseers that the petitioner
"is presently of good moral character and . . . would almost certainly not
commit any serious crime" and that granting the petition would
"clearly have no actual adverse effect upon the integrity of the Bar" were supported by substantial evidence, including evidence of the petitioner's
good character since disbarment, of his pursuit of scholarly interests, and of
his fitness to be reinstated, and a conclusion was warranted that the
petitioner had sustained the burden imposed for reinstatement, and this court
[***3] ordered the unopposed
petition granted, although the petitioner held fast to his contention of
innocence and admitted to no rehabilitation of character. [459-468]
COUNSEL:
John F. Groden (John M. Reed
& Harold Rosenwald with him) for the petitioner.
Robert J. DeGiacomo (Daniel Klubock
& Barry Brown with him) for the Board of Bar Overseers.
Frederic G. Corneel
& Edward J. Barshak, for the Boston Bar Association, amicus curiae, submitted a brief.
JUDGES: Tauro, C.J., Reardon, Quirico, Braucher, Hennessey, Kaplan,
& Wilkins, JJ.
OPINIONBY: TAURO
OPINION:
[*448]
[**431] Alger Hiss was struck from the roll of Massachusetts lawyers on August 1,
1952, and now seeks
reinstatement. The facts as disclosed by the record before us are as follows. On January 25,
1950, Alger Hiss was
convicted of two counts of
perjury in his testimony before a Federal grand jury. A previous trial had resulted
in a jury disagreement, and a mistrial had been declared. In particular, Hiss
was found to have testified falsely (1) that he had never, nor had his wife in
his presence, turned over documents or copies of documents of the United States
Department of State or of any other organization
[***4] of the Federal government to one Whittaker Chambers or to any other
unauthorized person and
[*449] (2) that he thought he could say definitely that he had not seen Chambers
after January 1, 1937. Chambers was the principal witness against Hiss and had
been his principal accuser during hearings held prior to the grand jury
investigation
by the Committee on Un-American Activities of the House of Representatives. n1
After Hiss had exhausted his rights of appeal (United States v. Hiss, 185 F. 2d 822 [2d Cir. 1950], cert. den.
340 U.S. 948 [1951]; see also
United States v. Hiss, 107 F. Supp. 128 [S. D. N. Y. 1952], affd. per curiam,
201 F. 2d 372 [2d. Cir. 1953], cert. den.
345 U.S. 942 [1953] [motion for a new trial]), he
[**432] was committed to the United States penitentiary at Lewisburg, Pennsylvania,
where he served some three and one-half years.
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n1 A more detailed history of events surrounding the trial and conviction may
be found in
United States v. Hiss, 185 F. 2d 822 (2d Cir. 1950),
cert. den.
340 U.S. 948 (1951).
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[***5]
Following affirmance of the conviction, the Boston Bar Association filed an
information with this court, setting forth the circumstances and a prayer for
"such action as the Court may deem fit." The matter was duly set down for hearing before a single justice of this
court, but, though given due notice of the hearing, Hiss, on the advice of
counsel, failed to enter an appearance. On November 2, 1951, the single
justice ordered Hiss defaulted and found the bar association's allegations to
be true. On August 1, 1952, after arguments by counsel, judgment was entered
by the single justice removing Hiss
"from the office of Attorney-at-Law in the Courts of this Commonwealth."
On November 4, 1974, for the first time, Hiss, then age sixty-nine, filed a
petition for
reinstatement as an attorney and an
accompanying affidavit which detailed his activities since his release from
prison. The matter was referred to the Board of Bar Overseers (the board)
pursuant to
S.J.C. Rule 4:01,
§ 18 (4),
365 Mass. 696
[*450] (1974). The board members n2 heard evidence and filed a report, consisting of findings
and
recommendations for disposition. The matter is before us now on reservation and report
[***6] without decision of the single justice. Three fundamental questions are
presented for our determination: (1) Were the crimes of which Hiss was
convicted and for which he was
disbarred so serious in nature that he is
forever precluded from seeking
reinstatement? (2) Are statements of
repentance and recognition of
guilt necessary prerequisites to
reinstatement? (3) Has Hiss demonstrated his
fitness to practice law in the Commonwealth?
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n2 Pursuant to
S.J.C. Rule 4:01,
§ 18 (4), the board could have referred the matter to a hearing committee, but
the members chose to hear the
evidence themselves.
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1. At the outset, we stress that we are not here concerned with a review of the
criminal case in which Hiss was tried,
convicted and sentenced. n3 In his trial, he received the full measure of due process
rights and opportunities to contest allegations of
guilt: a trial before a jury of his peers supplemented by
ample avenues of appeal. Basic respect for the integrity and finality of a prior
unreversed criminal judgment
[***7] demands that it be conclusive on the issue of
guilt and that an attorney not be permitted to retry the result at a much later date
in his
reinstatement proceedings. Cf.
In the
Matter of Braverman, 271 Md. 196 (1974). Hiss does not contend otherwise. While, in some civil proceedings, we permit
retrial of factual issues adjudicated previously in criminal cases (see, e.g.,
Silva v. Silva, 297 Mass. 217, 218 [1937]),
"[s]omething different is involved . . . [here]. . . . A member of the bar
whose name remains on the roll is in a sense held out by the Commonwealth,
through the judicial department, as still entitled to
confidence. A conviction of crime, especially of serious crime, undermines public
confidence in him. The average citizen
[*451] would find it incongruous for the . . . [Federal government] on the one hand
to adjudicate him guilty and deserving of punishment, and then, on the other
hand, while his conviction and liability to punishment still stand [for the
Commonwealth] to adjudicate him
innocent and entitled to retain his membership in the bar."
Matter of Welansky, 319 Mass. 205, 208-209 (1946). n4 Accord, American Bar Association
Special
[***8]
[**433] Committee on Evaluation of Disciplinary Enforcement, Problems and
Recommendations in Disciplinary Enforcement, 131 (Final Draft 1970). n5 Thus, Hiss comes
before us now as a
convicted perjurer, whose
crime, a direct and reprehensible attack on the foundations of our
judicial system, is further tainted by the breach of
confidence and trust which underlay his conviction. His conviction and subsequent
disbarment are
"conclusive evidence of his lack of
moral character
at the time of his removal from office" (emphasis
supplied).
Matter of Keenan, 313 Mass. 186, 219 (1943).
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n3 Hiss seeks
reinstatement and not vindication.
n4 In
Welansky, we were concerned with retrial of criminal convictions in
disbarment proceedings. The result follows a fortiori in
reinstatement proceedings.
n5 This
special committee report addressed the problem of
"[n]o provision making conviction of crime
conclusive evidence of
guilt for purposes of the disciplinary proceeding based on the conviction."
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2.
[***9] Nevertheless, the serious nature of the crime and the
conclusive evidence of past unfitness to serve as an attorney do not
necessarily disqualify Hiss at the present time. We
cannot subscribe to the arguments advanced by the chief Bar Counsel (Bar
Counsel) n6 that, because the
[*452] offenses committed by Hiss are so serious, they
forever bar
reinstatement n7 irrespective of good conduct or reform. n8 Though in previous cases we
intimated by way of dicta that there may be
"offenses so serious that the attorney committing them can never again satisfy
the court that he has become trustworthy" (Matter of Keenan, 314 Mass. 544, 548-549 [1943]; see, e.g.,
Matter of Keenan, 313 Mass. 186, 219, [1943];
Centracchio, petitioner,
345 Mass. 342, 346-347 [1963]), we cannot now say that any offense is so grave that a
disbarred attorney is automatically precluded from attempting to demonstrate through
ample and adequate proofs, drawn from conduct and social interactions, that he has
achieved a
"present
fitness" (In re Kone, 90 Conn. 440, 442 [1916]) to serve as an attorney and has led a sufficiently exemplary life to
inspire public
confidence once again, in spite
[***10] of his previous actions. n9
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n6 The Bar Counsel and assistants are appointed by the board with the approval
of this court pursuant to
S.J.C. Rule 4:01,
§ 5 (3) (b),
365 Mass. 696 (1974). The Bar Counsel is charged with the responsibility of
"[investigating] all matters involving alleged misconduct by an attorney" and
"[prosecuting] all disciplinary proceedings before hearing committees, the
[b]oard and this court."
S.J.C. Rule 4:01,
§ 7 (1), (3),
365 Mass. 696 (1974). The rules of this court provide that
"at hearings conducted with respect to motions for
reinstatement" the Bar Counsel
"shall appear . . . with full rights to participate as a party."
S.J.C. Rule 4:01,
§ 7 (4),
365 Mass. 696 (1974).
n7 Some
aspects of the board's findings and
recommendations may be read to embrace this position:
"With Mr. Hiss's conviction outstanding, unreversed, not subject to attack, and
necessary for us to consider, all the other evidence of his present character
cannot be of any weight." However, the context and remainder of the board's report make clear that the
board does not subscribe to the full measure of its counsel's position.
[***11]
n8 In view of what we say in the opinion, we need not consider or decide
whether such a ruling would amount to a
conclusive presumption frowned on by many courts. Compare
Vlandis v. Kline, 412 U.S. 441, 446 (1973),
Leary v. United States, 395 U.S. 6 (1969), and
Barnes v. United States, 412 U.S. 837 (1973), with
Weinberger v. Salfi, 422 U.S. 749 (1975).
n9 Other jurisdictions appear split on whether conviction for particularly
heinous crimes
will necessarily result in
permanent
disbarment. See generally American Bar Association
Special Committee on Evaluation of Disciplinary Enforcement, Problems and
Recommendations in Disciplinary Enforcement, 150 (Final Draft 1970); anno.
70 A. L. R. 2d 268, 276-279 (1960). A number of States permit
reinstatement on a showing of
rehabilitation despite conviction for serious crimes involving moral turpitude or breaches of
trust. See, e.g.,
Allen v. State Bar of Cal. 58 Cal. 2d 912 (1962) (perjury);
In re May, 249 S. W. 2d 798 (Ky. Ct. App. 1952) ("not
forever . . . beyond the pale of respectability");
In re Taylor, 330 S. W. 2d 393 (Ky. Ct. App. 1959) (fraud on the court);
Ex Parte Marshall, 165 Miss. 523 (1933) (blackmail). Cf.
March v. Committee of Bar Examrs. 67 Cal. 2d 718 (1967) (first admission to bar; no conviction but false testimony before
Congressional committee);
Williams v. Governors of the Fla. Bar, 173 So. 2d 686 (Fla. 1965) (reinstatement considered and denied; conspiracy to thwart prosecution);
In re Sympson, 322 S. W. 2d 808 (Mo. 1959) (criminal contempt for suborning
perjury; not reinstated). Other States make conviction of certain serious crimes a
ground for
permanent
disbarment. See, e.g.,
People v. Buckles, 167 Colo. 64 (1969) (statute);
In the
Matter of Bennethum, 278 Atl. 2d 831, 833 (Del. 1971);
People ex rel. Chicago Bar Assn. v. Reed, 341 Ill. 573, 577 (1930);
In re Application of Van Wyck, 225 Minn. 90 (1947); Tenn. Code Anno.
§ 29-310 (1955 and Supp. 1974) (cf.
Cantor v. Grievance Comms. 189 Tenn. 536 [1949]).
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[***12]
[*453]
[**434]
Disbarment is not a
permanent punishment imposed on delinquent attorneys as a supplement to the sanctions of
the criminal law --
"though it may have that practical effect. Its purpose is to exclude from the
office of an attorney in the courts, for the preservation of the purity of the
courts and the protection of the public, one who has demonstrated that he is
not a proper person to hold such office."
Keenan, petitioner,
310 Mass. 166, 169 (1941). Accord, n10
Bar Assn. of the City of Boston v. Greenhood, 168 Mass. 169, 183 (1897) ("protection of the public from attorneys who disregard their oath of office");
Bar Assn. of the City of Boston v. Casey, 211 Mass. 187, 192 (1912);
Matter of Keenan, 314 Mass. 544, 546-547 (1943). The position of the Bar Counsel presupposes that certain
disbarred attorneys, guilty of particularly heinous offenses against the
judicial system, are incapable of meaningful reform which would qualify them to be attorneys
and, further, that the public will never be willing to revise an earlier
opinion that the offender was not a proper person to function as an attorney.
If adopted the rule would provide that
"no
[***13] matter what a
disbarred attorney's subsequent conduct
[*454] may be; no matter how hard and successfully he has tried to live down his past
and atone for his offense; no matter how complete his reformation -- the door
to restoration is
forever sealed against him."
In re Stump, 272 Ky. 593, 597-598 (1938). Such a harsh, unforgiving position is foreign to our system of reasonable,
merciful justice. It denies any
potentiality for reform of character. A fundamental precept of our system
(particularly our correctional system n11 ) is that men can be rehabilitated.
"Rehabilitation . . . is a 'state of mind' and the law looks with favor upon rewarding with
the opportunity to serve, one who has achieved 'reformation and regeneration.'"
March
v. Committee of Bar Examrs.
67 Cal. 2d 718, 732 (1967). Time and experience may mend flaws of character which allowed the immature man
to err. The chastening effect of a severe sanction such as
disbarment may redirect the energies and reform the values of even the mature miscreant.
There is always the potentiality for reform, and fundamental fairness demands
that the
disbarred attorney have opportunity to adduce proofs.
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n10
In re Kone, 90 Conn. 440, 442 (1916).
In re Barton, 273 Md. 377, 381 (1974).
In re Application of Smith, 220 Minn. 197, 199 (1945).
In re Sympson, 322 S. W. 2d 808, 812 (Mo. 1959).
In re Petition of Morrison, 45 S. D. 123, 129 (1922).
In re Enright, 69 Vt. 317, 319 (1897).
[***14]
n11
"Even wrongdoers
convicted of crime are given another chance."
In re Stump, 272 Ky. 593, 598 (1938).
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The public welfare,
"the true test" in all proceedings for
reinstatement (Matter of Keenan, 314 Mass. 544, 547 [1943]), calls for no different result. There can be no harm in permitting
any
disbarred attorney to adduce proofs of his changed character. Certainly, the proceeding
[**435] itself poses no threat to the
public interest. n12 It does not guarantee readmission. Before he again will be entered on the
rolls as an attorney
eligible to practice, the
disbarred attorney who has committed the grave offenses to which the Bar Counsel directs
attention must bear a heavy burden of proof (see,
infra, at 460) and pass the close scrutiny to which reviewing courts subject
petitions
[*455] for
reinstatement. Indeed, the proceeding may ultimately redound to the public benefit, for the
attorney who can attain
reinstatement in such a proceeding after having committed a grave offense could become a
credit to the bar and an asset to those he serves.
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n12 It is appropriate to observe that a proceeding which fairly provides an
opportunity to demonstrate
good moral character cannot lower the standing of the bar or bring it into disrepute.
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[***15]
3. In assessing Hiss's
fitness for
reinstatement to the bar, the Board of Bar Overseers considered itself bound by our decision
in
Matter of Keenan, 314 Mass. 544 (1943), to require
admission of guilt and
repentance as part of the proof of Hiss's present
good moral character and
rehabilitation. Accordingly, because Hiss continues to insist on his
innocence, the board recommended that his petition for
reinstatement be denied. The board wrote:
"When the
disbarment is wholly based upon the conviction of the petitioner of an offense which is
clearly a 'serious crime' (perjury), which conviction has not been reversed, and the petitioner has not been
pardoned, the task of a petitioner such as Mr. Hiss, who continues to assert
his
innocence, to satisfy this Board of his present
good character, becomes logically impossible for him to meet under the law, as the Board
conceives the law to be. . . . [S]o long as Mr. Hiss's conviction stands, and
so long as he continues to deny his
guilt of an offense of which he was
convicted, after what was ruled to be a fair trial, the Board finds,
under the decisions by which it is bound, that the petitioner has not satisfied us that his readmission
[***16] would not be
detrimental to the standing of the Bar, the administration of justice or to the
public
interest" (emphasis
supplied).
Neither the controlling case law nor the legal standard for
reinstatement to the bar requires that one who petitions for
reinstatement must proclaim his
repentance and affirm his adjudicated
guilt.
Matter of Keenan, 314 Mass. 544 (1943), cited by the board as dispositive, does not hold that
repentance and
admission of guilt are mandatory. In
Keenan, supra, we considered a variety of factors relevant to
reinstatement;
repentance was but one of them. After a full review of the evidence
[*456] presented, we concluded that
"in view of all the factors which must be taken into account" (id. at 550) Keenan should not be reinstated. The evidence held
"forth no certainty that . . . [the petitioner] would not again fall a victim to
the same weakness that was his first undoing."
Ibid. Particular emphasis was placed on the
"unusual history and background" (id. at 547) of the case -- the sweeping public investigation into abuses and
unprofessional conduct of the
tort bar -- and on the precedent that the case would be for similar petitions
[***17] by others exposed in the same investigation. The failure of Keenan to
admit
guilt or repent n13 did not, any more than the other factors considered, determine
the outcome.
Centracchio, petitioner,
345 Mass. 342 (1963), the other case from this jurisdiction cited by the board, contains no explicit
holding with respect to
repentance. In fact, the petitioner was denied
[**436]
reinstatement though, through his conduct, he had given evidence of
repentance.
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n13 Note also that the court wrote that
"[t]here was little evidence of
repentance
or reform" (emphasis
supplied).
Matter of Keenan, 314 Mass. at 550 (1943).
Ample evidence of character reform would have been sufficient, in and of itself, to
support
reinstatement (though
repentance alone would not have been).
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The legal standard for
reinstatement to the bar is set forth in
S.J.C. Rule 4:01,
§
18 (4),
365 Mass. 696 (1974). There is no mention of
repentance as a prerequisite to admission:
"The respondent-attorney . . . shall have the burden
[***18] of demonstrating that he has the moral qualifications, competency and learning
in law required for admission to practice law in this Commonwealth, and that
his resumption of the
practice of law will not be
detrimental to the integrity and standing of the bar, the administration of justice, or to
the
public interest." In proceedings on petitions for
reinstatement, we must ascertain that the prospective members of the bar are presently
"trustworthy" (see
Bar Assn. of the City of Boston v. Greenhood, 168 Mass. 169, 183 [1897];
[*457]
Keenan, petitioner,
310 Mass. 166, 168 [1941];
Kepler v. State Bar of Cal. 216 Cal. 52, 55 [1932];
In re Application of Smith, 220 Minn. 197, 200 [1945]) and upright of character, not that they are willing to
admit past mistakes.
Statements of
guilt and
repentance may be desirable as evidence that the
disbarred attorney recognizes his past wrongdoing and will attempt to avoid repetition
in the future. However, to satisfy the requirements of present
good moral character in the tests for
reinstatement noted above, it is sufficient n14 that the petitioner adduce substantial proof
that he has
"such an appreciation of the
[***19] distinctions between right and wrong in the conduct of men toward each other
as will make him a fit and safe person to engage in the
practice of law."
In re Koenig, 152 Conn. 125, 132 (1964). See
In re Stump, 272 Ky. 593, 598-599 (1938). Such an appreciation, if deeply felt and strongly anchored, will serve as a
firm foundation and justification for the order of
reinstatement. Mere words of
repentance are easily uttered and just as easily forgotten.
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n14 A number of
jurisdictions do not require an avowal of
repentance as a prerequisite to
reinstatement. See, e.g.,
In re Barton, 273 Md. 377, 382 (1974);
Ex Parte Marshall, 165 Miss. 523, 551-552 (1933);
In re Eddleman, 77 Wash. 2d 42, 45, n. 1 (1969). But cf.
In the
Matter of Bennethum, 278 Atl. 2d 831, 833 (Del. 1971);
In re Application of Smith, 220 Minn. 197, 202 (1945).
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The continued assertion of
innocence in the face of a prior conviction does not, as might be argued, constitute
conclusive proof of lack of the necessary
moral
[***20] character to merit
reinstatement. n15 Though we deem prior judgments dispositive of all factual issues and deny
attorneys subject to disciplinary proceedings the right to relitigate
[*458] issues of
guilt, we recognize that a
convicted
person may on sincere reasoning believe himself to be
innocent. We also take cognizance of Hiss's argument n16 that miscarriages of justice
are possible. Basically, his underlying theory is that
innocent men conceivably could be
convicted, that a contrary view would
[**437] place a mantle of absolute and inviolate perfection on our system of justice,
and that this is an attribute that cannot be claimed for any human institution
or activity. We do not believe we can say with certainty in this case, or
perhaps any case, what is the true state of mind of the petitioner. Thus, we
cannot say that every person who, under oath, protests his
innocence after conviction and refuses to repent is committing
perjury.
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n15 The contrary position seems to have been adopted by the board:
"Strict application of logical principles might, in fact, lead to the conclusion
that the petitioner gives evidence of his present lack of
moral character when he again testifies to his
innocence of the original charge, in the face of a conviction which this
Board, for purposes of its deliberations, must accept as establishing the fact
of his
guilt."
[***21]
n16 The Bar Counsel in his brief agrees that
repentance and
admission of guilt should not be conditions of
reinstatement:
"While an adjudication of
guilt must stand as a determination of that fact, legally and judicially, binding
upon the accused and all the world, all that is or can be demanded of the
accused is that he shall accord full respect to and acquiescence in that
finding and judgment.
It cannot be demanded that he deny his own conscience or his own knowledge, and
that he assert a
guilt which for him does not exist. The
Keenan case does not make such a demand.
Repentance is only one of many factors that may be considered" (emphasis
supplied).
The Boston Bar Association in its amicus brief took a similar position.
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Simple fairness and fundamental justice demand that the person who believes he
is
innocent though
convicted should not be required to confess
guilt to
a criminal
act he honestly believes he did not
commit. For him, a rule requiring
admission of guilt and
repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he
may cast aside his
[***22] hard-retained scruples and, paradoxically,
commit what he regards as
perjury to prove his worthiness to practice law. Men who are honest would prefer to
relinquish the opportunity conditioned by this rule:
"Circumstances may be made to bring
innocence under the penalties of the law. If so brought, escape by confession of
guilt . . . may be
[*459] rejected, -- preferring to be the victim of the law rather than its
acknowledged transgressor -- preferring death even to such certain infamy." n17
Burdick v. United States, 236 U.S. 79, 90-91 (1915). Honest men would suffer
permanent
disbarment under such a rule. Others, less sure of their moral positions, would be
tempted to
commit
perjury by admitting to
a nonexistent offense (or to an offense they believe is nonexistent) to secure
reinstatement. So regarded, this rule, intended to maintain the integrity of the bar, would
encourage corruption in these latter petitioners for
reinstatement and, again paradoxically, might permit
reinstatement of those least fit to serve. We do not consider in this context the person
who
admits committing the alleged criminal act but honestly believes it is not unlawful.
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n17 The quotation refers to confession of
guilt through acceptance of a pardon.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***23]
Accordingly, we refuse to disqualify a petitioner for
reinstatement
solely because he continues to protest his
innocence of the crime of which he was
convicted.
Repentance n18 or lack of
repentance is evidence, like any other, to be considered in the evaluation of a
petitioner's character and of the likely repercussions of his requested
reinstatement. However, nothing we have said here should be construed as detracting one iota
from the fact that in considering Hiss's petition we consider him to be guilty
as charged. Our discussion
relates only to the issue whether Hiss must
admit his
guilt as condition to
reinstatement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 Different principles may apply to cases in which the delinquent attorney
should make restitution of misappropriated funds. We do not here decide what
effect failure to make restitution should have on a petition for
reinstatement.
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4. Having resolved these preliminary questions of law, we pass now to
consideration of Hiss's present
fitness to serve as an attorney. The standards for
[***24]
reinstatement drawn from the rules of this court have been set forth
[*460] (see pp. 456-457,
supra). In judging whether a petitioner satisfies these standards and has
demonstrated the requisite
rehabilitation since
disbarment, it is necessary to look to (1) the nature of the original offense for which
the petitioner was
disbarred, (2) the petitioner's character, maturity, and experience at the time of his
disbarment, (3) the petitioner's occupations and conduct in the time since his
disbarment, (4) the time elapsed since the
disbarment, n19 and (5)
[**438] the petitioner's present competence in legal skills. See
Application of Spriggs, 90 Ariz. 387, 388, n. 1 (1962);
In re Barton, 273 Md. 377, 379 (1974);
In re Application of Strand, 259 Minn. 379, 381 (1961);
In the
Matter of the Petition of Seijas, 63 Wash. 2d 865, 868-869 (1964). Cf.
In re Petition of Dawson, 131 So. 2d 472, 474 (Fla. 1961). The judgment of
disbarment
"continues to be evidence against . . . [the petitioner] with respect to lack of
moral character at later times in accordance with the principle that 'a state of things once
proved to exist may generally be found to continue.'
[***25]
Gladston v. McCarthy, 302 Mass. 36, 37 [1938]. Whatever the offense for which a judgment of
disbarment was entered, the person
disbarred has
a heavy burden on a subsequent petition for admission to the bar to overcome by
evidence the weight of the facts adjudicated by such judgment and to establish
affirmatively n20 that since his
disbarment he has become 'a
[*461] person proper to be held out by the court to the public as trustworthy" (footnote added).
Matter of Keenan, 313 Mass. 186, 219 (1943). See
McArthur v. State Bar of Cal. 28 Cal. 2d 779, 788 (1946). While the courts are slow to disbar, they are justifiably slower to reinstate
and to
"put into the hands of an unworthy petitioner that almost unlimited opportunity
to inflict wrongs upon society possessed by a practicing lawyer."
In re Petition of Morrison, 45 S. D. 123, 126 (1922). Accord,
In re Application of Smith, 220 Minn. 197, 200 (1945).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n19 Since
disbarment is
not primarily a punishment for the offending lawyer, passage of time alone is
insufficient to warrant
reinstatement. See
In the
Matter of Bennethum, 278 Atl. 2d 831, 834 (Del. 1971);
Williams v. Governors of the Fla. Bar, 173 So. 2d 686 (Fla. 1965). Cf.
Centracchio, petitioner,
345 Mass. 342, 348 (1965). Length of time
disbarred should not be treated as an additional penalty. The petitioner must
demonstrate that his
reinstatement would not be
detrimental to the public welfare. In this regard, a long time span between
disbarment and petition for
reinstatement, during which the petitioner's conduct was exemplary, reinforces his claim to
rehabilitation.
[***26]
n20 In
Matter of Keenan, 314 Mass. 544, 548, 549 (1943), we employed a more exacting standard:
"To overcome it [the crime of 'corruptly influencing three jurymen'] and to
prove that the guilty person can
again inspire the public
confidence necessary to the proper performance of the duties of an attorney at law
requires little less than absolute assurance of a complete change of
moral character."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In any disciplinary proceeding the findings and
recommendations of the board, though not binding on this court, are entitled to great weight.
n21 See
March
v. Committee of Bar Examrs.
67 Cal. 2d 718, 720 (1967);
In the
Matter of Bennethum, 278 Atl. 2d 831, 833 (Del. 1971);
Petition of Eddleman, 77 Wash. 2d 42, 43 (1969). Cf.
In re Application of Strand, 259 Minn. 379, 381 (1961). The board has heard testimony and observed witnesses and, by virtue of this
firsthand observation, is better able than a reviewing court to judge the
relative credibilities of witnesses and to assign weight to the evidence they
give. In the instant
case, the failure of Hiss to repent aside, n22 the
[***27] board found (1)
"that Mr. Hiss is presently of
good moral character
[**439] and that he would
[*462] almost certainly not
commit any serious crime if readmitted to the bar" and (2)
"that the granting of the petition will clearly have no actual adverse effect
upon the integrity of the Bar, as it would be evidenced by the conduct of any
other attorney." These findings are supported by substantial evidence and warrant Hiss's
reinstatement as a member of the bar. In the light of these findings, we believe that,
absent the issue of
repentance, the board would have recommended Hiss's
reinstatement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 In
Centracchio, petitioner,
345 Mass. 342 (1963), we had before us a report of the Board of Bar Examiners, the board's
predecessor in the position of oversight over disciplinary matters. We applied
the standard for use of such reports which was prescribed in
Rule 1 (7) of the General Rules (1952), 328 Mass. 732-733 (1952).
"'At such hearing [before a single justice of this court] the report shall have
the weight and effect of an auditor's report in an action of law.' This means
'prima facie evidence'
G. L. (Ter. Ed.) c. 221, § 56."
Centracchio, petitioner, supra, at 346.
[***28]
n22 The board prefaced the first of these findings as follows:
"Nevertheless, the Board, if it were free to consider the matter in the absence
of the only evidence to the contrary (the conviction), would unanimously find .
. . ." The context makes clear that the board referred to the conviction only in so
far as the conviction compels reference to evidence of
repentance and
rehabilitation. We have previously dealt with the issue of
repentance. We believe that the finding of present
good moral character demonstrates
rehabilitation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Considerable time (approximately twenty-three years) has elapsed since the
original
disbarment of Hiss. His activities since his
disbarment reflect the efforts of a man who
wished to abide by the court's decree of
disbarment and to earn a living in other fields of endeavor while he maintained the
scholarly interests he had held prior to his
disbarment. In the interval between his
disbarment and the present, he has scrupulously refrained from the
practice of law. He has not been
convicted of any crime n23 and has not been implicated in any activities which contained
[***29] the slightest hint of dishonesty or moral turpitude. As the board found on
ample evidence,
"he has courageously and industriously set himself to earn an honest living and
to support his family, without bewailing the financial loss caused by his
conviction and
disbarment." n24 He has pursued his scholarly interests through a program of diverse
lectures and the publication
[*463] of articles and books. In his lectures, delivered at a wide variety of
colleges, universities and other public forums, in this country and abroad, he
has generally avoided the subject of his personal tribulations in order to
concentrate on subjects relating to the
United Nations and American foreign policy. He has written two books and has
contributed a number of book reviews to periodicals. At the request of the
late Professor Mark DeWolfe Howe of Harvard Law School, he edited the abridged
edition of the Holmes-Laski letters.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n23 To be precise, he was once fined $ 5 for playing baseball with his son in
Washington Square Park.
n24 Because of restrictions on his activities, his earnings over the years have
been quite modest. Since 1966, Hiss's yearly earnings from his job as a
salesman have not exceeded $ 14,100 and have averaged only about $ 10,400.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***30]
The evidence regarding character
supplied by Hiss's gainful employment in the business world is uniformly good. From
1956 to 1959, he was the assistant to the president of a small manufacturing
concern, presumably a position of
confidence. His employment was terminated by the financial difficulties suffered by his
employer. After a brief period of unemployment, he obtained his current job as
a salesman of stationery supplies and printing. The board found that
"he has earned an excellent business reputation both for industry and honesty in
this occupation." A representative of the company which employs Hiss testified that he had
achieved a very close relationship with his customers and that they insisted
that he alone service their accounts. She testified further that
"[i]n the preparation of his billing" n25 he had
"always been very, very fair and equitable and [had] never taken himself into
consideration." Specifically, he had not availed himself of a bonus system through which he
could have expanded his own commissions by charging a higher markup on sales.
As additional proof of the high regard in which Hiss is held by his business
colleagues there is in evidence a letter
[***31] from the president of the corporation which is his employer's controlling
stockholder. The president writes that in the event Hiss were to become a
member of the
[*464] Massachusetts
bar, the firm
"would be glad" to engage Hiss as a legal consultant to explore the legal requirements for
doing business in Massachusetts.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n25 The witness had worked with Hiss in the billing and credit aspects of the
business.
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At the hearing before the board, a number of talented and eminent attorneys
came
[**440] forward to attest to Hiss's
good character. n26 Others, including a retired Justice of the United States Supreme Court and
a former Solicitor General of the United States, submitted complimentary
affidavits and letters. n27 We n28 have had to discount a part of this evidence
because some of those giving evidence did not accept Hiss's
guilt of the crime for which he had been
disbarred and, thus, spoke of his
good character without distinguishing the period before his conviction and
disbarment from that which succeeded
[***32] it. n29 See
Matter of Keenan, 314 Mass. 544, 550 (1943).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n26 No witnesses
came forward to oppose
reinstatement. When duly notified, the Attorney General of the United States indicated that
he did not
"wish to be heard or to be represented at the hearing." Similar communications were received from the Massachusetts Bar Association,
the Committee on Grievances of the Association of the Bar of the City of New
York and the clerk of the United States Supreme Court. The prosecutor of the
Hiss
perjury case, the Honorable Thomas F. Murphy, did not respond to the communication of
the board's counsel.
n27 Erwin N. Griswold (former Solicitor General of the United States and Dean
of the Harvard Law School), Eli Whitney Debevoise, Benjamin V. Cohen, Charles
A. Horsky and Joseph A. Fanelli submitted sworn affidavits recommending
reinstatement. Mr. Justice Stanley Reed submitted a letter to the same effect.
n28 The board did as well.
n29 As noted above, some of the witnesses based their
recommendations for Hiss's
reinstatement on the belief that Hiss was
innocent. It is true that the petitioner's record prior to the incident in question was
outstanding and without blemish and that his life for the past two decades
since his release from prison has been impeccable. It is equally true that
nothing in the record corroborates in any way the fact of
guilt and, further, that the Department of Justice, although invited, has declined
to appear in these proceedings. Nonetheless, we emphasize that whether Hiss
was
innocent is not an issue in this matter and can receive no consideration. The record
of conviction must stand without question.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***33]
[*465] However, several witnesses provided solid evidence of
fitness for
reinstatement. Professor Victor Brudney of the Harvard Law School met Hiss after his release
from prison and has had regular social contacts with Hiss throughout the years.
In the course of their acquaintanceship, Professor Brudney testified, they
have had numerous conversations on law and law-related subjects. In those
conversations, Professor Brudney
found Hiss to be quite competent ("a first-rate mind") in dealing with legal problems and aware of trends and events in the law.
According to Professor Brudney,
"the attitudes . . . [Hiss] revealed in discussion disclosed a perception and a
sensitivity for the interests of others in controversial situations." Hiss was candid and direct in his dealings with people, and Professor Brudney
said that he would
"feel comfortable" if he received the first draft of a contract from Hiss if Hiss were acting for
the other side. When asked if he would consult and confide in Hiss as a
lawyer, Professor Brudney's response was enthusiastic and affirmative. Of a
similar tenor was the testimony of Professor Richard Field, also of the Harvard
Law School faculty. Professor
[***34] Field, a noted scholar and pedagogue, currently teaches a course in
"professional responsibility." His contacts with Hiss subsequent to the
perjury convictions appear to have been less
frequent than those of Professor Brudney, but were sufficiently numerous to
provide
ample basis for judgment. Professor Field testified that Hiss had retained his
"deep interest" in the law and that, from their discussions, it was manifest that Hiss had
"kept himself well abreast of developments" in the field of international law, his specialty. Professor Field stated
further that he would have no hesitancy in employing Hiss as a legal consultant
in the areas of Hiss's specialty. n30
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n30 The force of Professor Field's testimony is vitiated to an extent by his
admission that he has never believed that Hiss was guilty of the crimes charged
and that his opinion of Hiss's
moral character was not changed by his conviction and
disbarment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*466]
[**441] The testimony of Helen Buttenwieser, a member of the New York bar and
[***35] a good friend of Hiss, who on occasion has counseled Hiss on legal matters,
also provides substantial support for the board's findings.
According to her testimony, she has had frequent and fairly regular contacts
with Hiss during the period subsequent to his
disbarment. In the course of their relationship, both professional and social, she has
found him to be a man of the
"highest" integrity. She testified:
"If he has a fault, it is that he tends to bend over backwards for fear he might
possibly be trying to persuade somebody to do something which was beyond what
he wanted to do." She testified further that she and one of her partners had often met with Hiss
for lunch and that, during their luncheon conversations, they had had occasion
to discuss legal cases of mutual interest. The discussions had ranged over
questions of constitutional and civil liberties law and had accorded particular
emphasis to issues from cases which her partner had pending before the United
States Supreme Court. In these discussions, the witness had found Hiss both
"capable" and
"stimulating." Hiss has not, to her knowledge, shown any anger or rancor regarding the
outcome of his trial. She testified:
"[H]is
[***36] attitude is that this is our system of justice and he will
take his chances with it again and again and again."
Finally, n31 Hiss's own testimony must be mentioned in support of the board's
finding of
fitness. His testimony was both forthright and principled. He stated that he found the
charge of
perjury
"abhorrent" and that the
perjury charge had included
"two other charges worse than
perjury, which I regard as absolutely reprehensible in a lawyer -- failure of trust and
failure of
confidence." He candidly gave his own impression of the development of his
moral character, though that candid impression
[*467] might have thwarted his
reinstatement:
"I have not had any complete change in
moral character. I am the same person I have been, I believe, throughout my life. If that's
the law of Massachusetts [requiring
repentance and complete change of
moral character], I am excluded." His testimony contained no hint of present animosity or grudge against those
who had prosecuted and
convicted him. The conviction itself had not shaken his faith in the
judicial system:
"[A]s far as the courts are concerned . . . I have never had the slightest doubt
that ours is the finest
judicial
[***37] system there is, and I don't just mean in the Churchill sense . . . [i.e., that it's]
better than any he knows about. It's good; it's fine. I think it makes
mistakes, and I know it made a mistake in my case, but there is no human
institution that doesn't sometimes make mistakes."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n31 In the interests of brevity, we omit description of the supporting
testimony of Mr. Robert Von Mehren of the New York bar and Mr. Richard Wait of
this bar.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The testimony detailed above provides abundant support for the board's
conclusion that Hiss is presently of
good character. Though Hiss, himself, in holding fast to his contention of
innocence,
admits no
rehabilitation of character, we believe that the evidence amply warrants the board's finding
that he would not
now
commit the crime of which he was
convicted. The considerable evidence of his present
good character, his exemplary behavior over a substantial time span, and the tributes paid him
by eminent practitioners who have known him well during the period convince us
[***38] that, despite the gravity of the crime and his maturity at the time of its
commission,
"his resumption of the
practice of law will not be
detrimental to the integrity and standing of the bar, the administration of justice, or to
the
public interest."
S.J.C. Rule 4:01,
§ 18 (4),
365 Mass. 696 (1974). It is notable in this regard that the record contains no testimony in
opposition to
reinstatement. Indeed, the Council of the Boston Bar Association, the organization which
filed the information leading to
disbarment, voted to communicate the opinion
[**442] to the board that Hiss's resumption of practice would not adversely
[*468] affect the standing and integrity of the bar or the
public interest. n32 The board could correctly find that Hiss has sustained the heavy burden of
showing moral and
intellectual n33
fitness by good and sufficient proofs.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n32 In his letter, the president of the Boston Bar Association employed the
language of
S.J.C. Rule 4:01,
§ 18 (4),
365 Mass. 696 (1974), in so far as it is quoted in the paragraph hereinabove.
n33 As noted, many of the witnesses testified to his ability and continued
attention to legal affairs. Though his recollection of Massachusetts law will
not be as
"sharp" as it once was, we believe he has demonstrated a competence equivalent to that
of an out-of-State lawyer admitted on motion or without examination (see
G. L. c. 221, § 39). In view of the finding of
good moral character, we assume Hiss will have the sound discretion to restrict his consultative and
advisory activities to areas of his undoubted competence.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***39]
The petition for
reinstatement to the bar is to be granted. On subscription to the required oaths, Hiss is
to be readmitted to the
practice of law in the Commonwealth.
So ordered.
