In re Petition of John B. Harrington
No. 21-76
Supreme Court of Vermont
134 Vt. 549;
367 A.2d 161;
1976 Vt. LEXIS 726
December 2, 1976, Opinion filed
PRIOR HISTORY:
[***1]
Petition for readmission to the Bar of Vermont after
disbarment. Supreme Court, original jurisdiction,
Barney, C.J., presiding.
DISPOSITION:
The petitioner, upon compliance with the licensing provision of Rule 8 of the
Rules of Admission of Attorneys, shall be readmitted to practice in the courts
of this State and shall be subject to the Standards of Professional Conduct as
established from time to time by administrative order of this Court.
HEADNOTES: 1. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
It is not the supreme court's function to
""review'' the findings and
recommendations of the
professional conduct board, but to make the only final and
ultimate decision upon petitions for
readmission to the
practice of law, based upon the court's constitutional responsibility for regulation and
discipline of the
legal profession. Vt. Const. Ch. II,
§ 30.
2. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
In proceeding for
reinstatement to
practice of law, the
professional conduct board functions as a collator of facts and advisor to the supreme court,
assembling and evaluating presented materials, so that they will be in
manageable form for the court.
3. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
The
professional conduct board's findings and
recommendations in a proceeding for
reinstatement to the bar carry great weight but are
not binding on the supreme court.
4. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
Reinstatement to
practice of law involves judgment matters not susceptible to
automatic application of rules; each case must be resolved in light of all of its own circumstances,
and except in the broadest policy concerns, there is no precedential value as
between cases.
5. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
Disbarment is a
protective device, not an additional punishment; and the court is limited to
issues relating to moral
qualifications,
competency,
legal learning and the determination that
readmission will not be detrimental to administration of justice, the integrity and
standing of the bar or the
public interest. Adm. Ord. No. 30,
§ XVII(d).
6. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
A disbarred attorney petitioning for
reinstatement has the burden to establish a favorable aspect as to his
qualifications,
competency, legal training and the effect of
readmission on the administration of justice, the integrity of the bar and the
public interest, by
clear and convincing evidence. Adm. Ord. No. 30,
§ XVII(d).
7. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
The granting of a full executive
pardon for a crime upon which
disbarment was based does not automatically operate to require
readmission; the circumstances must be examined.
8. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
The effect upon a petition for
reinstatement to the bar, of a full executive
pardon of a crime on which
disbarment was based, is that the consequences of the conviction and the inferences
against petitioner are ended, restoring him to the position of an applicant for
admission who has no
criminal record, even though it is undeniable
that certain
criminal conduct might still be of concern to the court on the issue of probable fidelity to
ethical standards.
9. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
It is the court's
duty to review the evidence in a proceeding for
reinstatement to the bar as it is affected by the circumstances of a
full pardon for a crime upon which
disbarment was based, a circumstance that must favor the petitioner.
10. Attorney and Client--Reprimand, Suspension and
Disbarment--Reinstatement
Though there may be an
""unforgiveable'' crime by the very nature of the wrong, for which
readmission of a disbarred attorney to the
practice of law could not be justified, such as
breach of fiduciary duty to clients, the circumstances of petitioner's pardoned crime of maliciously
threatening to accuse one of a crime with intent to extort money, which was
personally advantageous to him only insofar as it benefited his client and was
not the conventional
extortion situation, did not
lend itself to the allocation of any permanent barrier to
reinstatement.
COUNSEL:
Harold C. Sylvester, Burlington, for Plaintiff.
Ronald C. Schmucker, Burlington, for Defendant.
JUDGES: Barney, C.J., Daley, Larrow and Billings, JJ. and Shangraw, C.J. (Ret.)
Specially Assigned.
OPINIONBY: PER CURIAM
OPINION:
[*551]
[**162] The petitioner seeks
readmission to the Bar of Vermont after
disbarment. He was removed from practice after conviction of the felony of
extortion reported in
State v. Harrington, 128 Vt. 242, 260 A.2d 692 (1969). See
128 Vt. 445, 266 A.2d 433 (1970). The petition was filed with the
Professional Conduct Board under the provisions of Section XVII of
Administrative Order No. 30. A panel was appointed, hearings held and a report filed with the
Professional Conduct Board. The Board
[***2] adopted that report and
recommended denial of the petition for
readmission.
Before consideration of the matter could be had in this Court, several
affidavits and exhibits were mislaid and a taped transcript of one of the
hearings inadvertently erased. As a result the petition was resubmitted to a
new panel by direction of this Court.
The new five-man panel held hearings and made its
report, together with findings. A majority of the panel
recommended
[*552] denial of the petition, with one member concurring in the findings but
recommending
[**163] a probationary arrangement, and one member who dissented, filing a detailed
written statement. Some members of the Board disqualified themselves, but by a
seven to two vote, the
recommendation of the majority of the
hearing panel was accepted. The matter is now for final decision by this Court.
This Court agrees with the statement of the petitioner that this Court is the
true final arbiter in this matter. It is not the function of this Court, in
matters of this kind, to
"review" actions taken below. The only final and
ultimate decision is made here, on the responsibility of this Court. The
Professional Conduct Board functions
[***3] as a collator of the facts and an advisor to the Court, assembling and
evaluating the presented material so that it will be in manageable form for the
Court. The findings and
recommendations of the Board, both as an arm of the
Court and as a body representative of the profession, carry great weight. But
they are not binding.
In re Monaghan, 126 Vt. 53, 57, 222 A.2d 665 (1966).
This position is not based on any shortcomings in the Board or its members, but
on the plain fact that it is upon this Court that the responsibility for
regulation and discipline of the
legal profession falls. Chapter II, section 30, Vermont Constitution. These are judgment
matters and not susceptible to the
automatic application of rules. For this reason each case must be resolved in the light of all of
its own circumstances and, except in the broadest sorts of policy concerns,
there is no precedential value as between cases.
In view of the
duty of this Court to shield the public, as far as it can, from practitioners who
would prey upon clients or misuse their training, and the concomitant
responsibility to do all possible to maintain public confidence in the
practicing Bar, our responses to
petitions
[***4] for
reinstatement are thereby necessarily restricted. It is not enough that we are moved to
sympathetic concern for a truly repentant former member of the profession. It
is not enough that we believe a sufficient, or more than sufficient, penalty
has already been exacted for his misbehavior.
Disbarment is a
protective device, not an additional punishment.
In re Enright, 69 Vt. 317, 319, 37 A. 1046
[*553] (1897). The concern of the Court is required to be limited to
issues relating to moral
qualifications,
competency and
legal learning appropriate to the
practice of law in Vermont, and to the determination of whether
readmission will be detrimental to the administration of justice or to the integrity and
standing of the Bar or that such
readmission will be contrary to or inconsistent with the
public interest. See Section XVII(d) of
Administrative Order No. 30 of this Court.
The provisions of that order put the burden on the petitioning attorney to
establish its favorable aspect of those just-stated concerns by the
measure of
"clear and convincing evidence". The majority of the
Professional Conduct Board was not convinced that this petitioner did so, and we are required
[***5] to make our evaluation from the record presented to them.
That record extensively reviews the entire professional history of the
petitioner, both before and after his
disbarment. Up until the events leading to the criminal prosecution, he had never been the
subject of any disciplinary action. He was an active trial lawyer in his home
county and had been a member of the Bar for sixteen years at the time of his
trial.
Without detailing the circumstances of the criminal case, reported in
128 Vt. 242, it should be pointed out that the activities underlying the criminal charge
were personally advantageous to him only insofar as they benefited his client
and were not the conventional
extortion situation. He was sentenced to serve ten to fifteen months at the state
prison, the maximum penalty for the crime being
[**164] limited to twenty-four months or a five hundred dollar fine. He in fact
served four months at Windsor State Prison, then was transferred to the
Burlington Correctional Center and put in a work release status. After six
months he was paroled until the expiration of his term in March, 1971.
In 1972 the petitioner was convicted of driving while intoxicated. Later
[***6] that same year he was issued a
full pardon by Governor Davis for his felony conviction, subject to the condition to which
he agreed that he never petition this Court for
reinstatement to the
practice of law in Vermont.
The petitioner had voluntarily ceased the
practice of law when he came under investigation on the
extortion charge and has not since engaged in the
practice of law. He has worked
[*554] and supported his family, ultimately doing legal research and brief writing
under the supervision of members of the Bar. The Board affirmatively found
that the petitioner has sufficiently maintained his professional skills.
In 1974 the petitioner wrote a
letter to then former Governor Davis concerning an application to Governor
Salmon for a full and
unconditional pardon. Governor Davis responded with a message that indicated that such an
application was not in any sense a breach of faith in terms of the
conditional pardon he had granted. This view was taken in the light of Governor Davis' knowledge
that
reinstatement was also to be sought if the
pardon was granted. His evidence was that, based on an investigation made at the
time the
conditional pardon was granted, he believed
[***7] it was not in the
public interest for the petitioner to be readmitted to practice, and that he continued to be
of that opinion at the time of the hearing.
Governor Salmon did grant the petitioner a full and
unconditional pardon. By that time this Court had, by
administrative order, established procedures governing the
Professional Conduct Board. It is these procedures, since modified, that now govern petitions for
readmission. Under these procedures the present petition was instituted.
By agreement, the quantity of character
testimony was limited to avoid a quantitative parade. Since the facts involved
were not matters of dispute, the opinions with respect to the petitioner's
qualifications to practice and entitlement, or lack of it, to
readmission were the principal matter before the Board. Lawyers testified on both sides,
including, as already noted, former Governor Davis. Petitioner's
readmission got strong support from two former Lieutenant Governors, two former Bar
Presidents, a Chief Superior Judge, a member of the Board of Bar Examiners and
a former Chairman of the
Professional Conduct Board. There were also lay businessmen who supported
readmission. There is no dispute
[***8] but that these witnesses spoke from full knowledge of the issues involved and
extensive acquaintance and observation of the man. It must be recognized that
it is a more difficult thing for many of us to testify against a petitioner on
such issues than it is to advance the more compassionate view.
[*555] The large circumstance that is at issue here, although
not emphasized in the Board's findings, is the full executive
pardon. Since we are not dealing with a penalty, the
pardon does not have any automatic consequence with respect to reeligibility. The
underlying conduct as representing fitness for the
legal profession is still a concern, even though the criminal aspect has been excused or
expunged by the
pardon.
Pardons are given for many reasons. If the basis were the delayed establishment of
total innocence, its impact might well be different than if it were a
compassion
pardon given on account of age or state of health. Thus, there cannot be any
automatic operation as to
reinstatement based solely on the granting of a
pardon. The circumstances must be examined.
[**165] However, the existence of the
pardon does have an effect. It is an executive judgment that the
[***9] consequences of a conviction of a crime, and the inferences against the
accused, are to be ended. It does restore the petitioner to the position of an
applicant for admission who has no
criminal record, even though no responsible court could refuse to
acknowledge the possibility that the undeniable fact of certain
criminal conduct might still be of concern on the issue of probable fidelity to
ethical standards.
In the case at hand the Board and the
hearing panel appear to have given the
pardon insufficient weight. Certainly it was a critical circumstance that interposed
itself between the circumstances in 1972 when then Governor Davis issued the
conditional pardon and the time of these hearings after the
full pardon in 1975. It is the
duty of this Court to review the evidence as it is affected by the circumstance of
the
full pardon, a circumstance that must favor the petitioner. We would point out in passing
that we find from the evidence that there is no basis for any assertion that
there is any breach of faith involved in petitioner's present application for
readmission.
There is, in the case, a proposition suggested that there may be an
"unforgiveable" crime, a crime for which
[***10]
readmission to practice, by the very nature of the wrong, could not be justified. This
may be so.
One of the kinds of offense that would
lend itself to that thinking would certainly be those
[*556] involving the
breach of fiduciary duty to clients. But see
In re Paddock, 114 Vt. 207, 42 A.2d 342 (1945). Other than that, the seriousness of the offense is not a necessary indication
that
readmission is unthinkable. See
In the
Matter of Alger Hiss, Mass. , 333 N.E.2d 429 (1975). In any event, the circumstances of this crime, already dealt with, do not
lend themselves to the allocation of any permanent barrier to
reinstatement.
Thus it comes down to the fact that, unlike the Board, this Court cannot find
that the petitioner has failed to discharge his burden of proof under
Administrative Order No. 30. We, like petitioner's counsel, find the analysis filed by the
dissenting member of the Board cogent and persuasive. Based on the total
record we find that the petitioner is entitled to
reinstatement as a member of the Bar of Vermont.
The petitioner,
upon compliance with the licensing provision of Rule 8 of the Rules of
Admission of Attorneys, shall be readmitted
[***11]
to practice in the courts of this State and shall be subject to the Standards
of
Professional Conduct as established from time to time by
administrative order of this Court.
