In the Matter of the Disciplinary Proceeding Against John M. Rosellini, an
Attorney at Law
No. C.D. 4974
SUPREME COURT OF WASHINGTON
108 Wn.2d 350;
739 P.2d 658;
1987 Wash. LEXIS 1077
July 2, 1987, Filed
DISPOSITION:
[***1]
Holding that the attorney had made sufficient showing of overcoming the
weakness that led to his misconduct, the court
grants the petition conditioned on the attorney passing the bar examination, being
supervised by an experienced attorney, cooperating with the bar association,
and making reports to the Board of Governors.
HEADNOTES:
[1] Attorney and Client --
Discipline --
Reinstatement -- Factors. In determining whether a
disbarred attorney has overcome the
weaknesses which led to his
misconduct, the Supreme Court will evaluate his character, standing, and professional
reputation in the community in which he resided and practiced law before his
disbarment; the
ethical standards he observed in his law practice; the nature of the
misconduct which led to his
disbarment; the sufficiency of the punishment undergone, including the making of
restitution if appropriate; his attitude, conduct, and reformation after
disbarment; the period of time
elapsed since
disbarment; his present proficiency in the law; and his
sincerity, frankness, and
truthfulness in presenting and discussing his
disbarment and petition for
reinstatement.
[2] Attorney and Client --
Discipline --
[***2]
Reinstatement -- Prior
Reputation -- Determination. In determining the prior character, standing, and professional
reputation of a petitioner for
reinstatement to
practice law, the Supreme Court will consider the petitioner's community activities,
communications from members of the community, and the existence of any other
disciplinary actions against the petitioner.
[3] Attorney and Client --
Discipline --
Reinstatement --
Ethical Standards --
Misconduct Resulting in
Disbarment. The
ethical standards of a
disbarred attorney petitioning for
reinstatement are determined without consideration of the conduct which resulted in
disbarment.
[4] Attorney and Client --
Discipline --
Reinstatement -- Nature of Prior
Misconduct -- Trust Fund Violation. An attorney's misappropriation of funds placed in his trust, and his
subsequent
disbarment therefor, does not preclude
reinstatement if the attorney has overcome the
weakness and been rehabilitated.
[5] Attorney and Client --
Discipline --
Reinstatement -- Sufficiency of Punishment -- Test. Punishment of a
disbarred attorney is sufficient if the attorney is unlikely to again disregard his oath
of attorney.
[***3]
[6] Attorney and Client --
Discipline --
Reinstatement -- Present Attitude -- Repentance. Repentance on the part of a petitioner for
reinstatement as an attorney is an indication that he will not repeat his
wrongdoings in the future.
[7] Attorney and Client --
Discipline --
Reinstatement -- Time Since
Disbarment -- Effect. In determining whether
sufficient time has
elapsed since the
disbarment of an attorney seeking
reinstatement, the Supreme Court will look at the time that exemplary conduct has been
demonstrated and consider whether it is sufficient to demonstrate
rehabilitation.
[8] Attorney and Client --
Discipline --
Reinstatement -- Conditions -- Duration. Appropriate conditions, such as passing the bar examination,
supervision, audits and reports, and cooperation with the bar association, may be imposed
on the
reinstatement of a
disbarred attorney. The 2-year maximum
probation period set forth in RLD 5.2(a) may be exceeded upon agreement by the attorney.
[9] Attorney and Client --
Discipline --
Reinstatement --
Recommendation of Board of Governors. The
recommendation to the Supreme Court by the Board of Governors regarding the petition
[***4] for
reinstatement of a
disbarred attorney is advisory only.
[10] Attorney and
Client --
Discipline --
Reinstatement -- Policy.
Disbarment is not a permanent disability and
reinstatement is appropriate upon a proper showing of
rehabilitation.
SYLLABUS:
Nature of Action: An attorney who was disbarred for misuse of clients' trust funds and accounts
petitioned for reinstatement. The Board of Governors, with one member
dissenting, recommended that the petition be denied.
COUNSEL:
Schweppe, Krug
& Tausend, P.S., by
Fredric C. Tausend and
Kenneth G. Whitaker, for petitioner.
Robert T. Farrell, for Bar Association.
JUDGES: En Banc. Dolliver, J. Pearson, C.J., Utter and Durham, JJ., and Williams, J.
Pro Tem., concur. Brachtenbach, J., concurs in the result only. Callow and
Andersen, JJ., and Noe, J. Pro Tem., concur by separate opinion. Dore and
Goodloe, JJ., did not participate in the disposition of this case.
OPINIONBY: DOLLIVER
OPINION:
[*352]
[**659] John M. Rosellini,
disbarred on May 20, 1982, petitions for
reinstatement as an attorney in Washington. He requests review of the order of the
Washington State Bar Association Board of Governors recommending
[***5] against
reinstatement. We grant
conditional reinstatement subject to restrictions discussed below.
John M. Rosellini was admitted to the bar in 1973. Prior to his admission, he
had served as a State Representative for the 34th District. He has worked as
an attorney in private practice, and was the Democratic candidate for State
Attorney General in 1980.
Rosellini was
disbarred by this court in 1982 for
misuse of his client
trust account and funds. The circumstances of the conduct leading to his
disbarment are recounted in
In re Rosellini, 97 Wn.2d 373, 646 P.2d 122 (1982). This court in a 5-to-3 decision adopted the
recommendation of the Disciplinary
Board to disbar Rosellini.
In re Rosellini, at 374.
Since his
disbarment, Rosellini has made extensive efforts to reestablish his life, his livelihood,
and his
reputation in the community. After the events leading to his defeat in the race for
Attorney General and
disbarment, Rosellini sought professional psychiatric help in the summer of 1982 from Dr.
Raymond Vath. He has received therapy regularly and continues in therapy to
the present
[*353] time at a reduced frequency. He has shown a steadily improving record
[***6] of employment, from route salesman for a beer wholesaler,
"test barn" supervisor at Longacres, real estate seller, consultant for King County, and
employee in the King County real property division, to his current employment
as a deputy review officer for the Washington State Department of Employment
Security. He obtained his real estate license after making a
satisfactory showing of
rehabilitation to the Department of Licensing. He has handled acquisitions, sales, and
leases of property for King County.
After his
disbarment, Rosellini continued to be listed as
"atty" in the phone book. Rosellini stated he called the telephone company and asked
for his listings as an attorney to be removed and was unaware it had not been
done. Whenever others have approached him to perform legal work since his
disbarment, he has informed them he was
disbarred and could not accept.
Rosellini notes he has not received assistance from his self-described
"prominent and well-to-do family" to help him recover financially. The record reflects he has demonstrated
financial responsibility with regard to his personal obligations since his
disbarment.
Rosellini petitioned for
reinstatement in August of
[***7] 1985. The bar association appointed Ronald E. McKinstry as special state bar
counsel to conduct an investigation concerning the petition and to assure all
relevant information was brought before the Board of Governors. The special
[**660] counsel
obtained and reviewed all relevant documentation from the bar association and
from Rosellini. He took the depositions of Rosellini and Dr. Vath. Dr. Vath
concluded, based on his diagnosis and the results of his treatment, it was
highly unlikely Rosellini would repeat the conduct leading to his
disbarment. Dr. Vath did recommend Rosellini practice with or under the
supervision of other attorneys to provide additional guidance and support for him. In
addition, special counsel hired two expert psychologists to evaluate Dr. Vath's
conclusions. The psychologists agreed
[*354] Rosellini's increased age, the punishment he received for his
misconduct and the benefits of treatment supported the conclusion that Rosellini in all
probability would not engage in similar
misconduct. They further agreed with Dr. Vath's suggestion that Rosellini initially
maintain close association with other attorneys.
Special counsel also investigated
[***8] complaints filed by four individuals against Rosellini prior to his
disbarment and concluded none of the complaints
justified disciplinary action such as
suspension or
disbarment. He made extensive efforts to solicit other comment in support of or opposition
to the
reinstatement of Rosellini, by directly contacting Rosellini's former clients, his past and
present employers, and by publication of notices soliciting comment published
in the Washington State Bar News and several major newspapers throughout the
state. Despite the extensive efforts to solicit comments, only four letters in
opposition were received, in contrast to well over 100 letters in support of
reinstatement. The letters of opposition primarily reflected not personal objections to
Rosellini, but resistance to the
reinstatement of any attorney
disbarred for prior
misconduct, particularly trust fund violations. The conclusion of special bar counsel was
to recommend
reinstatement. He also concluded the evidence suggested Rosellini should practice under some
form of
supervision, in order to implement the
recommendations of Dr.
Vath and the expert psychologists and to provide further protection for the
public.
On February
[***9] 15, 1986, the Board of Governors held a full-day hearing regarding the
petition. The Board heard the testimony of several witnesses. The testimony
of Rosellini comprised the major portion of the hearing. He was subjected to
cross examination by special bar counsel and direct questioning by most of the
members of the Board of Governors. On March 25, 1986, the Board of Governors
issued an order recommending against
reinstatement by an 8-to-1 vote. The Board's findings of fact stated: (1) Rosellini had
shown his character, standing and professional
[*355]
reputation prior to
disbarment was good; (2) Rosellini was sincere, frank and truthful in his presentation
and discussion of his
disbarment and potential
reinstatement; and (3) it is unlikely Rosellini as a practicing attorney would in the future
engage in
misconduct similar to that leading to his
disbarment. The Board nevertheless
found, due to the gravity of his offense and the amount of time
elapsed since his
disbarment, that
reinstatement would be detrimental to the integrity and standing of the judicial system and
contrary to the public interest. In addition to the order, most of the members
of the Board wrote or signed
[***10] comments supporting their positions on the
recommendation. Rosellini now petitions for review of the order pursuant to RLD 9.6(b).
I
[1] The major consideration in
reinstatement proceedings, as we have consistently stated, is whether the
disbarred attorney has overcome those
weaknesses which produced the earlier
misconduct.
In re Egger, 93 Wn.2d 706, 707, 611 P.2d 1260 (1980);
In re Johnson, 92 Wn.2d 349, 350, 597 P.2d 113 (1979);
In re Eddleman, 77 Wn.2d 42, 44, 459 P.2d 387, 461 P.2d 9 (1969). This court has
specifically utilized eight criteria in making this assessment:
(a) the applicant's character, standing, and professional
reputation in the community in which he resided and practiced prior to
disbarment; (b) the
ethical standards which he observed in the practice of law; (c) the nature and character of the
charge for which he was
disbarred;
[**661] (d) the sufficiency of the punishment undergone in connection therewith, and
the making or failure to make
restitution where required; (e) his attitude, conduct, and reformation subsequent to
disbarment; (f) the time that has
elapsed since
disbarment; (g) his current proficiency in the law; and
[***11] (h) the
sincerity, frankness, and
truthfulness of the applicant in presenting and discussing the factors relating to his
disbarment and
reinstatement.
In re Eddleman, at 44. We turn now to review the evidence regarding each of these criteria.
[2] (a) Applicant's character, standing, and professional
[*356]
reputation in the community prior to
disbarment. In applying this
criterion in prior cases, this
court has reviewed the petitioner's community activities, letters from members
of the community regarding character and professional
reputation, and the existence of any other disciplinary actions against the attorney.
See, e.g.,
In re Batali, 98 Wn.2d 610, 615, 657 P.2d 775 (1983);
In re Egger, supra at 708;
In re Lonergan, 23 Wn.2d 767, 773-74, 162 P.2d 289 (1945). Rosellini's community activities have reflected a consistently high
reputation prior to his 1980 defeat. He served three terms in the Washington State House
of Representatives and was selected by his party as the candidate for Attorney
General. He was Italian Vice-Consul for the Pacific Northwest and was active
in the Italian community. He was and continues to be involved in
[***12] various church and school activities. The numerous letters received by the
bar association from
colleagues, acquaintances, clients, attorneys, employers, and the public
reflect an overwhelming amount of genuine regard for Rosellini's character and
reputation. With regard to his bar association record, no other disciplinary actions had
been taken against Rosellini prior to his
disbarment although there had been four unrelated complaint letters on file. Special bar
counsel thoroughly investigated each of these complaints by reviewing the
records and interviewing those involved. We agree with the conclusion of
special bar counsel that none of these complaints would ever have justified
disciplinary action such as
suspension or
disbarment.
[3] (b)
Ethical standards observed in the practice of law. In reviewing this
criterion, the Board of Governors below mistakenly interpreted it to include
consideration of the
misconduct which led to
disbarment. Our opinions applying this
criterion demonstrate instead an inquiry into the attorney's conduct outside of those
specific events leading to
disbarment.
See, e.g., In re Batali, at 615 ("[a]s to the
ethical
standards observed
[***13] by Mr. Batali in the practice of law prior to the events which led to his
disbarment in 1975, there is no indication of previous
misconduct . . .");
[*357]
In re Johnson, 92 Wn.2d 349, 351, 597 P.2d 113 (1979) (petitioner
"did not have a history of unethical or questionable professional conduct"). Consideration of the
misconduct itself is reserved for consideration in
criterion (c). In Rosellini's case, the bar investigation did not reveal any
ethical violations beyond those leading to
disbarment. Further, the letters received in support of the petition for
reinstatement indicate that Rosellini conducted himself in an
ethical manner prior to his
misuse of client trust funds.
(c) The nature and character of the charge leading to
disbarment. We have stated
"no charge strikes deeper into the heart of our
profession than the proven allegation that an attorney has invaded his client's funds."
In re Smith, 85 Wn.2d 738, 742, 539 P.2d 83 (1975). Trust fund violations regularly lead to
disbarment.
See
In re Rentel, 107 Wn.2d 276, 286, 729 P.2d 615 (1986);
In re Stock, 104 Wn.2d 273, 280, 704 P.2d 611 (1985);
In re Rosellini, 97 Wn.2d 373, 377-78, 646 P.2d
[***14] 122 (1982) (listing 46 prior cases of
disbarment for
trust account violations). Rosellini himself described
misuse of client trust funds as the most serious offense a lawyer can commit short of
a violent crime. He has recognized the gravity of his offense throughout the
bar proceedings.
[**662]
[4] The long-standing policy of this court has been that the gravity of the
misconduct in
itself should not preclude
reinstatement if the attorney can establish he has rehabilitated himself.
In re Bruener, 178 Wash. 165, 167, 34 P.2d 437 (1934). It is almost universally recognized by other jurisdictions that
disbarment is not a permanent disability. Annot.,
Reinstatement of Attorney After
Disbarment,
Suspension, or Resignation,
70 A.L.R.2d 266, 276 (1960) (and cases cited therein). Upon a proper showing that the petitioner has
overcome those
weaknesses producing his earlier
misconduct, a
disbarred attorney may be
reinstated.
In re Egger, 93 Wn.2d 706, 611 P.2d 1260 (1980);
In re Eddleman, 77 Wn.2d 42, 43, 459 P.2d 387, 461 P.2d 9 (1969). Based upon such proof of
rehabilitation or reformation, this court has in the past
reinstated
attorneys
disbarred for
[*358]
[***15] serious trust fund violations.
In re Batali, supra;
In re Lillions, 196 Wash. 272, 82 P.2d 571 (1938). Although we recognize the contrary view which would resist
reinstatement of a
disbarred attorney at any time, that view is not supported by the body of law in this
state, nor by the weight of authority in other jurisdictions.
[5] (d) The sufficiency of punishment and the making or failure to make
restitution. Rosellini has been severely punished for his
transgressions. Any
disbarred attorney suffers both personally and professionally. He publicly destroyed
his
reputation during the exposure of his
misconduct in almost daily newspaper coverage in the last month of the 1980 Attorney
General campaign. He lost the election and his public career ended. Over the
years of his
disbarment he has suffered additional public embarrassment, shame, and financial
hardship. Previous decisions
considering this
criterion have measured the sufficiency of the punishment by whether it will be unlikely
for the
disbarred lawyer to forget the oath of attorney in the future.
In re Walgren, 104 Wn.2d 557, 572, 708 P.2d 380 (1985);
In re Krogh, 85 Wn.2d 462, 479, 536 P.2d 578
[***16] (1975). Rosellini has fully realized the severity of his offense. The Board of
Governors agreed with the conclusion of Dr. Vath and others that Rosellini will
not be likely again to forget his attorney's oath.
In regard to
restitution, Rosellini made
restitution prior to public disclosure of his offenses and over 2 1/2 years before the
disbarment proceedings. No money was lost by either the Brandt heirs or the Italian
Consulate. Rosellini has fully repaid the bank loan taken out to replace the
funds removed from the Italian
Consulate account.
[6] (e) Attitude, conduct, and reformation since
disbarment. An attitude of repentance helps assure the court and the public that the
attorney recognizes his past wrongdoing and will not repeat it in the future.
In re Hiss, 368 Mass. 447, 457, 333 N.E.2d 429 (1975). The record here makes evident Rosellini's appreciation of the seriousness of
his offense, perhaps more than most other attorneys, as well as
[*359] his remorse for his wrongdoing and his own sincere belief in his complete
rehabilitation. He has promised he will never again forget his
ethical responsibilities. He has not attempted to justify his actions,
[***17] nor has he expressed bitterness regarding the punishment he has received.
His conduct since
disbarment has shown his efforts to conduct his life in a responsible and honest manner.
To his credit, he sought professional counseling to help him understand and
overcome the traits that contributed to his
transgressions. He has worked in increasingly responsible
occupations. Letters received from his employers have praised his honesty,
integrity, and work performance. Although his principal energies since
disbarment have been devoted to his work and the support of his wife and four children,
he has participated where possible in community activities. He has been
involved in his church and in activities at his children's schools. He served
briefly as an assistant
probation volunteer at the Seattle Municipal Court
probation office. Although some members of the Board of Governors commented upon his
continued listing as an attorney in the telephone directory, there is no reason
to disbelieve Rosellini's assertion he requested
[**663] the removal of the attorney designation. The record supports the Governors'
finding
"[i]t is unlikely that [he] would in the future engage in
trust
[***18] account violations . . ." This is all that could be predicted for the
reinstatement of any attorney. In the words of one of the members of the Board of
Governors,
"Rosellini has gone through a period of hardship with dignity, character and
purpose. He seems to have overcome the adversity which his
weakness
brought upon him."
[7] (f) The time that has
elapsed since
disbarment. The purpose of this
criterion is to postpone
reinstatement until
sufficient time has passed to enable the attorney to demonstrate actual conduct
worthy of trust and
confidence.
In re Lonergan, 23 Wn.2d 767, 771, 162 P.2d 289 (1945). The central concern is not the absolute time since
disbarment, but the length of time during which exemplary conduct is demonstrated.
Although the bar association notes the average
[*360] period of
disbarment before
reinstatement has been 7 years,
reinstatement after 4 years is not unusual or disproportionate in Washington law.
In re Walgren, supra;
In re Egger, supra;
In re Lillions, supra;
In re Bruener, supra. Further, RLD 9.1(a) governing
reinstatement permits petitions 3 years after
disbarment,
indicating
reinstatement may occur after that amount
[***19] of time. This court has never denied
reinstatement based solely on the passage of less than 3 or 4 years, nor has it ever denied
reinstatement where the petitioner has demonstrated
rehabilitation through 5 years of exemplary behavior. Rather, each denial has been based on
an identifiable failure to demonstrate
rehabilitation.
In re Eddleman, 77 Wn.2d 42, 45, 459 P.2d 387, 461 P.2d 9 (1969);
In re Simmons, 71 Wn.2d 316, 320-21, 428 P.2d 582 (1967);
In re Seijas, 63 Wn.2d 865, 870, 389 P.2d 652 (1964);
In re Durham, 59 Wn.2d 185, 187, 367 P.2d 126 (1961);
In re Gowan, 141 Wash. 523, 525-26, 251 P. 773 (1927). Adherence to the
Eddleman factors requires us to consider the individual facts and circumstances of the
particular attorney rather than adherence to statistical averages. Based upon
prior case law, RLD 9.1(a), and the facts of the present case, we find the time
elapsed has been sufficient to demonstrate Rosellini's
rehabilitation. Nothing more would be proved regarding Rosellini's
rehabilitation by the mere passage of additional time as a
disbarred attorney.
(g) and (h) Current proficiency in the law;
sincerity, frankness, and
truthfulness in discussing
[***20] factors relating to
disbarment and
reinstatement. The final two criteria also support a determination of
rehabilitation. In regard to his proficiency in the law, Rosellini has continued to review the
official advance sheets and has attended a bar examination review course.
Rosellini has demonstrated his
sincerity, frankness, and
truthfulness throughout both the
disbarment and
reinstatement proceedings.
Special bar counsel commented favorably on his
truthfulness and
sincerity and many of the letters regarding Rosellini's
reinstatement support this conclusion. The Board of Governors made a specific
[*361] finding that Rosellini had fully satisfied this
criterion.
Our review of the
Eddleman factors leads us with reasonable
confidence to a conclusion that the petitioner has been rehabilitated.
II
Special bar counsel recommended to the Board of Governors that Rosellini's
reinstatement be conditioned upon the
supervision of his work by an experienced attorney for a certain length of time. The
suggestion was based upon the opinions of Dr. Vath and the consulting experts.
Rosellini has stated he has no objection to
conditional reinstatement under such conditions, as he
[***21] already intends to seek employment under the
supervision of other attorneys. He has never contended he would need the
supervision to avoid
ethical violations. He has promised, and the evidence supports his assertion, he will
never again
misuse his
trust account.
[8] In several prior
cases, this court has conditioned the practice of attorneys upon their
compliance with specific requirements. In
In re Malone, 107 Wn.2d 263, 268, 728
[**664] P.2d 1029 (1986), this court placed the attorney on
probation for 2 years during which his handling of trust accounts shall be closely
monitored by the bar association. In
In re Batali, 98 Wn.2d 610, 657 P.2d 775 (1983), a
disbarred attorney was
reinstated subject to the condition he make reasonable progress toward full
restitution of the debts attributable to his
misconduct. The bar association was directed to provide continual
supervision of his compliance with the repayment schedule for
restitution. In
In re Koehler, 95 Wn.2d 606, 628 P.2d 461 (1981), the attorney was permitted to continue to practice upon condition that for 2
years she periodically provide review of her accounting system for client
billing. In
[***22]
In re Sherman, 66 Wn.2d 718, 404 P.2d 978 (1965), practice was conditioned upon compliance with a voluntary psychiatric
treatment program for a 3-year period. In
In re Rentel, 107 Wn.2d 276, 729 P.2d 615 (1986), although this court entered a judgment of
disbarment,
[*362] the hearing officer initially recommended a 10-year probationary period,
increased from 5 years at the attorney's request, including treatment, drug
tests, and
supervision by a committee of three attorneys.
In re Rentel, at 280.
The Rules for Lawyer
Discipline specifically provide for
probation as an appropriate sanction. RLD 5.2(a) provides:
A lawyer who has been found to have
committed an act of
misconduct and who has been sanctioned pursuant to rule 5.1 may in addition be placed on
probation for a fixed period not in excess of 2 years, under such conditions as may
appear appropriate. Such conditions may include but are not limited to
requiring alcohol or drug treatment, requiring medical care, requiring
psychological or psychiatric care, requiring professional office practice or
management counseling, and requiring periodic audits or reports. In any case
where a lawyer is placed on
probation
[***23] pursuant to this rule, the chairperson of the Board may upon the request of
state bar counsel appoint a suitable person to supervise the
probation. Cooperation with a person so appointed shall be a condition of the
probation.
Other jurisdictions have also imposed conditions of
probation, even after periods of disciplinary
suspension or
disbarment.
Smith v. State Bar, 38 Cal. 3d 525, 698 P.2d 139, 213 Cal. Rptr. 236 (1985);
Florida Bar v. Neely, 488 So. 2d 535 (Fla. 1986);
In re Hogan, 112 Ill. 2d 20, 490 N.E.2d 1280 (1986);
In re Siegel, 294 Md. 635, 452 A.2d 414 (1982);
In re Moore, 387 N.W.2d 435 (Minn. 1986);
In re Hollis, 95 N.J. 253, 471 A.2d 10 (1984);
In re Crist, 258 Or. 88, 481 P.2d 74 (1971).
The American Bar Association has also endorsed the use of
probation as an appropriate method of attorney
discipline.
Probation allows a lawyer to
practice law under specified conditions and may be imposed alone, in conjunction with other
discipline, or after
disbarment.
ABA Standards for Imposing Lawyer Sanctions, Std. 2.7 (Approved Draft, 1986). We have recognized the ABA standards as a
helpful analytical framework.
In re Rentel, at
[***24] 282.
We believe
conditional reinstatement is appropriate in
[*363] the present case, providing a gradual and supervised reentry into the
profession. To the extent any doubts remain about Rosellini in the minds of the bar or the
public, they will be better dispelled by observing and supervising his
performance in practice than by requiring him to sit idly by while awaiting a
later opportunity to reapply for
reinstatement.
Rosellini may not be
reinstated until he has passed the bar examination and taken his oath as an attorney.
His practice is then conditioned upon the appointment of an experienced
attorney as supervisor for a minimum period of 3 years. We direct Rosellini to
cooperate with the bar association in making this appointment. We also direct
him,
under the
supervision of the appointed attorney, to provide quarterly reports to the Board of
Governors certifying his compliance with the Rules of Professional Conduct. We
further direct the bar association to conduct an annual audit of his accounts
during this period. Should Rosellini fail to comply with any of these
[**665] terms, he will be subject to a disciplinary proceeding under RLD 1.1(b).
After 3 years,
[***25] Rosellini may petition for termination of the
probation upon submission to the bar association of an affidavit stating he has complied
with the conditions of his
reinstatement and is of good moral character such as to warrant termination of the
probation. The bar association must then certify to this court Rosellini is of good moral
character and qualified to
practice law without
supervision.
In re Bowden, 99 Wn.2d 684, 689, 663 P.2d 1349 (1983). We note that by the end of this 3-year period it will be well over 10 years
since the
original
misconduct leading to
disbarment.
Although we recognize RLD 5.2(a) specifies a maximum of 2 years of
probation, the attorney for Rosellini stated at oral argument a period of 3 years would
be acceptable. We see no reason why a longer period may not be imposed where
agreed to by the disciplined attorney and no objection is raised by the bar
association.
In re Rentel, at 298 (Goodloe, J., dissenting). We find this limited waiver of the
provisions of RLD 5.2(a) is appropriate under the circumstances
[*364] of this case and under our inherent power to dispose of individual cases of
lawyer
discipline. RLD 2.1.
[9] We recognize
[***26] our disposition of this case departs from the
recommendation of the Board of Governors. The
recommendations of the bar association, although given great weight, are advisory only, and
the ultimate decision lies with this court.
In re Belsher, 102 Wn.2d 844, 854, 689 P.2d 1078 (1984);
State ex rel. Schwab v. Washington State Bar Ass'n, 80 Wn.2d 266, 271, 493 P.2d 1237 (1972). This court has departed from the
recommendation of the Board of Governors in the past regarding whether to reinstate an
attorney.
In re Shain, 24 Wn.2d 598, 166 P.2d 843 (1946);
In re Lillions, 196 Wash. 272, 82 P.2d 571 (1938);
In re Bruener, 178 Wash. 165, 34 P.2d 437 (1934).
[10] We have based this decision upon the long-standing doctrine of this 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. We believe a detached and thorough review of the
record demonstrates Rosellini's
rehabilitation.
In making our decision, we are guided by the philosophy that our most
fundamental responsibility is the fair adjudication of all cases, including bar
discipline cases. In
[***27] the eyes of some, we could perhaps enhance the
reputation of the
profession by casting out permanently those the public perceives as wrongdoers. Public
perceptions, however, many times are formed without thorough consideration of
the conduct and character of the petitioner.
See
In re Krogh, 85 Wn.2d 462, 501-02, 536 P.2d 578 (1975) (Utter, J., dissenting). We believe the fair application of long-established
principles of law to the fully developed record of facts in this case will best
fulfill our responsibility and ultimately will best preserve the honor of the
profession.
We grant
conditional reinstatement for the petitioner, subject to the restrictions discussed herein.
CONCURBY: CALLOW
CONCUR:
[*365] Callow, J. (concurring)
I concur in the result. Under RLD 9.1 a petition for
reinstatement may not be filed within a period of 3 years after
disbarment. That period of time has passed and the petitioner is permitted to apply for
readmission under the rule. However, while mechanistic rules often work injustices in
specific situations, I submit that the rule specifies too short a time between
disbarment
[**666] and a petition for
readmission for this court to objectively
[***28] evaluate whether an applicant has been rehabilitated.
Rehabilitation means, among other things, that the applicant -- when faced with similar
temptations to those which caused previous violations of the Rules of
Professional Conduct -- will stand up to those temptations and not perform
dishonest acts again. Certainly the evaluation of whether a
disbarred lawyer has so changed his character as to be certifiable as meeting the
standards appropriate to perform the responsibilities of an officer of the
courts of the state is a nebulous and uncertain duty.
The order recommending against
reinstatement of the petitioner stated in part:
1. John M. Rosellini has demonstrated that his general character, standing and
professional
reputation in the community in which he practiced prior to
disbarment, namely, Seattle, King County, Washington, was good.
2. Mr. Rosellini was sincere, frank, and truthful in his presentation and
discussion of the factors relating to his
disbarment and potential
reinstatement.
3. It is unlikely that John M. Rosellini, as a practicing attorney, would in
the future engage in
trust account violations similar to those which led to his
disbarment.
4. Despite
[***29] his general good character, standing and
reputation in his community prior to
disbarment, John M. Rosellini did not, in his practice of law and prior to his
disbarment, observe and maintain the high
ethical standards expected and required of an attorney at law and officer of the court, as
demonstrated
by the facts which led to his
disbarment. The nature of the
trust account violations involved, as noted more fully in Finding
[*366] of Fact 5, infra, is among the most serious and severe
transgressions of those
ethical standards.
5. The offenses for which Mr. Rosellini was
disbarred were extremely serious, involved severe
transgressions of his professional and fiduciary duties as an attorney, and in the opinion of
the Board are of such a nature as to militate against
reinstatement, at least at this time. The record is clear as to the frequency of the
trust account violations involved and the fact that those violations were serious and
intentional. The record is also clear that Mr. Rosellini compounded his
violation of his duty to the public and to the Bar by falsely and knowingly
alleging that his
trust account was properly maintained and filing a sworn statement to that effect
[***30] with the State Bar Association.
6. The time
elapsed since Mr. Rosellini's
disbarment is insufficient to justify the granting of this Petition for
Reinstatement. The Court in
In re Walgren
, 104 Wn.2d 557 (1985), stated that
"the sufficiency of time determination is made by weighing the nature of the
offense against the time which has
elapsed subsequent to
disbarment: and that
"a
disbarred attorney should not be
reinstated until
sufficient time has
elapsed to enable him to actually demonstrate by conduct that he is, in fact,
worthy of trust and
confidence." John M. Rosellini was
disbarred on May 20, 1982. While there is no absolute time period set for
reinstatement in such a case, insufficient time has passed in this particular case, and in
view of the nature of the offense, for Mr. Rosellini to establish that, as an
attorney, he is in fact worthy of public trust and
confidence. The Board in fact finds that such has not been demonstrated or established.
The standards proposed by the American Bar Association in this area are as
follows:
Disbarment --
Readmission. The court has exclusive
power to readmit a
disbarred lawyer.
The lawyer should not be able to apply
[***31] for
readmission until at least five years after the effective date of
disbarment and should not be readmitted unless he can show by clear and convincing
evidence:
rehabilitation, fitness to practice, competence and compliance with all applicable
discipline or disability orders and rules.
American Bar Ass'n Joint Comm. on Professional
Discipline,
[*367]
Professional
Discipline for Lawyers and Judges (1979).
I agree with the approach of the American Bar Association rule. I concur in
the result because a period of 5 years has now gone by and the major basis for
denial of
readmission, as set forth by the Board of Governors, was that insufficient time had
[**667] passed since
disbarment. As stated by the majority, the requirement that time elapse after
disbarment before an application for
readmission can be filed exists to postpone
reinstatement until the attorney has demonstrated conduct
worthy of trust and
confidence. An application for
readmission should not be permitted until at least 5 years has
elapsed since
disbarment. To my mind 3 years is insufficient time for an applicant for
readmission to demonstrate that a
misuse of client funds will not happen again.
[***32]
The majority of the members of the Board of Governors stated that the length of
time that had expired since the petitioner had been
disbarred was insufficient for a proper evaluation to be made as to
rehabilitation and qualification to
practice law. One member (with whom two others concurred) stated:
In light of the seriousness of the offenses . . . and doubts about his
rehabilitation, four to five years of
disbarment is not sufficient.
Another said:
I do not feel that
sufficient time has
elapsed to enable the applicant to demonstrate that he is, in fact,
worthy of trust and
confidence. The time that has
elapsed is brief when compared to other cases
involving lawyers who were
disbarred for
trust account violations.
And, yet another stated:
I do not believe that
sufficient time has
elapsed that I can say that public
confidence in the legal system would be maintained if John Rosellini were to be
reinstated at this time.
Lastly, another said:
[*368] Regarding the nature of the offense, the
"sufficiency of time determination is made by weighing the nature of offense
against the time which has
elapsed subsequent to
disbarment."
[***33] . . . In recent years, however, where the character and nature of the offense
has involved
trust account violations, the time between
suspension and
reinstatement has been longer.
In re Batali, 98 Wn.2d 610, 657 P.2d 775 (1983) (8 years);
In re Johnson, 92 Wn.2d 349, 597 P.2d 113 (1979) (11 years).
A number of these members of the Board of Governors expressed doubts as to
whether the petitioner had yet demonstrated an
appreciation of the standards of conduct required of an attorney and a concern
about their ability, in so relatively short a time, to put their stamp of
approval on the petitioner. The rule permitting an application for
readmission should not specify only a 3-year period when the result is an almost unanimous
conclusion by experienced and respected members of the bar that the time period
is too short to tell whether a person who acted dishonestly will now
practice law with integrity and according to the Rules of Professional Conduct. I do not
reiterate the findings of the Board or the individual statements of its members
to rehash the circumstances pertaining to the particular petitioner involved
here. I set forth those findings and statements because
[***34] they excellently illustrate the reason for extending the time period for all
applicants for
readmission. When doubt remains,
reinstatement should be denied.
In re Eddleman, 77 Wn.2d 42, 43, 459 P.2d 387, 461 P.2d 9 (1969). RLD 9.1(a) should be amended to require the passage of 5 years between
disbarment and application for
readmission.
It has been said that each denial of
readmission in the past has been based on an identifiable failure to demonstrate
rehabilitation. I submit that
rehabilitation cannot be demonstrated or judged until the perspective of time permits a
proper appraisal of character. I submit that human experience demonstrates and
the Board of Governors of the American Bar Association has concluded that 3
years is not enough.
[*369] The handwriting of the majority is on the wall. I concur in the result rather
than engage in pointless dissent in an attempt to have the provisions of RLD
9.1 objectively reconsidered by the bench and bar of the state.
