In the Matter of the Disciplinary Proceeding v. Hugh W. Stroh, an Attorney at
Law
No. C.D. 6869
SUPREME COURT OF WASHINGTON
108 Wn.2d 410;
739 P.2d 690;
1987 Wash. LEXIS 1080
July 9, 1987, Filed
DISPOSITION:
[***1]
Holding that the petitioner had satisfied the criteria necessary for
reinstatement, the court
grants the petition subject to the petitioner's passing the bar examination.
HEADNOTES:
[1] Attorney and Client --
Discipline --
Reinstatement -- Factors. The Supreme Court decides whether a
disbarred attorney merits
reinstatement to the
practice of law by considering his character, standing, and professional
reputation in the community in which he resided and practiced law before his
disbarment; the
ethical standards which he observed in his law practice; the nature of the misconduct which led
to his
disbarment; the sufficiency of his punishment; his attitude, conduct, and
reformation after
disbarment; the 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] Criminal Law -- Punishment --
Probation -- Dismissal of Charge -- Effect on Conviction. A person who, after pleading guilty and fulfilling the conditions of his
probation, has the charge dismissed pursuant to RCW 9.95.240 may properly aver that he
has never been
convicted.
SYLLABUS:
[***2]
Nature of Action: Petition for reinstatement to practice law. The petitioner was convicted of
witness tampering in 1979 and disbarred in 1982. The Board of Governors, with
four members dissenting, recommended reinstatement.
COUNSEL:
Torbenson, Thatcher, Yund
& Blacklow, by
Walter J. Yund, Jr., for petitioner.
Robert T. Farrell, for Bar Association.
JUDGES: En Banc. Dore, J. Pearson, C.J., and Utter, Brachtenbach, Dolliver,
Andersen, Callow, Goodloe, and Durham, JJ., concur.
OPINIONBY: DORE
OPINION:
[*411]
[**692] Hugh Stroh was
disbarred by this court in 1982 for witness
tampering. He now petitions for
reinstatement.
Facts
Stroh was admitted to the Washington State Bar in 1970, and had a general
practice in which he handled civil and nonfelony criminal matters. In 1977,
during the course of handling a driving while intoxicated defense for a client,
Stroh had a discussion with the arresting
police officer which resulted in the filing of a charge of witness
tampering against him. The
police officer reported that Stroh requested that he not testify against Stroh's client, and
in the alternative that he falsify his testimony with regard to the warning he
gave the
[***3] client about the Breathalyzer test. The charge was initially dismissed on the
grounds of unconstitutionality, but this court reversed and remanded for trial.
State v. Stroh, 91 Wn.2d 580, 588 P.2d 1182, 8 A.L.R.4th 760 (1979).
At trial, Stroh pleaded not guilty, maintaining that his conversation with the
officer was in the nature of a plea bargain, as there was no prosecuting
attorney in the DWI
[*412] case with whom Stroh could have plea bargained. Nevertheless, the jury found
Stroh guilty of
tampering with a witness, a class C felony. He was given a deferred sentence, with the
terms of his 3-year
probation requiring 30 days in jail, payment of a $ 500 fine plus court costs, and 150
hours of
community service. On July 12, 1982, after Stroh fulfilled those terms, the court granted his
"Petition for Leave to Withdraw Plea of Guilty [sic] and Enter a Plea of Not Guilty" and ordered dismissal of the cause.
Concurrently with the criminal charges, Stroh was subject to
disciplinary action by the Washington State Bar Association.
In August 1979, upon becoming aware of the charges against Stroh, the bar
association instituted
disciplinary proceedings against him. The
[***4]
Disciplinary Review Board, however, reversed the conclusion of the
hearing examiner to disbar Stroh, and dismissed the complaint. At that point Stroh withdrew
his appeal of his
criminal conviction. The King County Prosecutor then
petitioned this court to review the Board's dismissal. This court held that the Board
erred in striking the hearing examiner's findings on the issue of
moral turpitude, and ordered
disbarment.
In re Stroh, 97 Wn.2d 289, 644 P.2d 1161 (1982),
cert. denied,
459 U.S. 1202 (1983).
In May 1984, Stroh
petitioned for
reinstatement the first time, but the petition was dismissed as premature, as it was filed
within 3 years of
disbarment. The instant petition for
reinstatement was filed on March 5, 1986. Special counsel
appointed by the Board of Governors, Paul Luvera, made an admirably thorough
investigation, and obtained the testimony of numerous witnesses. After
considering oral testimony, depositions and letters, on January 9, 1987 the
Board of Governors, in a 5-to-4 decision, entered an order recommending
reinstatement.
[**693] Since
disbarment, Stroh owned and later sold a small business, and has worked as a business
broker, most currently
[***5] with the Stroh Corporation, of which he is the sole shareholder.
[*413]
Reinstatement
The broad goals of attorney
discipline are protection of the public and the preservation of public confidence in the
legal system.
E.g.,
In re Rentel, 107 Wn.2d 276, 729 P.2d 615 (1986). A petitioner for
reinstatement to the bar has a heavy burden of showing by clear and convincing evidence:
"rehabilitation, fitness to practice [law], competence and compliance with all
applicable
discipline or disability
orders and rules", and that
reinstatement will not be detrimental to the integrity and standing of the bar, the
administration of justice, or the public interest.
In re Johnson, 92 Wn.2d 349, 350, 597 P.2d 113 (1979);
In re Eddleman, 77 Wn.2d 42, 43, 459 P.2d 387, 461 P.2d 9 (1969);
ABA Standards for Imposing Lawyer Sanctions, Std. 2.2 (Approved Draft, 1986). The major consideration in
reinstatement proceedings is whether the
disbarred attorney has shown that those weaknesses which produced the earlier misconduct
have been
corrected.
In re Walgren, 104 Wn.2d 557, 561, 708 P.2d 380 (1985).
[1] The recommendation of the Board of Governors to reinstate Stroh
[***6] is advisory only, but it is entitled to considerable weight.
In re Eddleman, at 43. Eight criteria are used by this
court to assess whether to reinstate a
disbarred attorney:
(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; (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 (h) the
sincerity,
frankness, and
truthfulness of the applicant in
presenting and discussing the factors relating to his
disbarment and
reinstatement.
In re Eddleman, 77 Wn.2d at 44. We turn to the record to
[*414] determine if Stroh has sustained his burden of proof on each of those elements.
A
Stroh's character, standing, and professional
reputation in the community in which he resided and practiced prior
[***7] to
disbarment.
The
letters and testimony of numerous attorneys, three judges, and several of
Stroh's clients uniformly support Stroh's good character and strong
reputation as an ethical attorney prior to his
disbarment. Interested parties were given ample opportunity to express contrary views, but
none did so. Stroh has demonstrated that, prior to the incident leading to
disbarment, his character, standing, and professional
reputation in the community were excellent.
B
The
ethical standards which Stroh observed in the
practice of law.
With the exception of the incident leading to Stroh's conviction and
disbarment, there is no record of any
disciplinary proceedings or any complaints, other than fee disputes. The letters and
testimony of judges and other attorneys familiar with Stroh's work generally
express the belief that Stroh was an ethical attorney, although an aggressive
one. Stroh has demonstrated, with the exception of the witness
tampering incident, that he had high
ethical standards in the
practice of law prior to
disbarment.
C
The nature and character of the charge
for which Stroh was
disbarred.
This court held in
In re Stroh, 97 Wn.2d at 295
[***8] that
[**694] the crime of
tampering with a witness strikes at the very core of the judicial system, and
necessarily involves
moral turpitude.
"'For an attorney at law to actively procure or knowingly countenance the
commission of perjury is utterly reprehensible.'"
In re Stroh, at 295-96 (quoting
In re Allen, 52 Cal. 2d 762, 768, 344 P.2d 609 (1959)). Further, Stroh
[*415] requested and the jury was instructed that the crime of which he was charged
required proof of criminal intent.
In re Stroh, at 296.
Stroh does not contest his conviction or the
seriousness of his crime. In considering
reinstatement for
disbarment resulting from a
criminal conviction, this court must treat guilt of the crime as an established fact.
In re Lonergan, 23 Wn.2d 767, 771, 162 P.2d 289 (1945). Nevertheless, we do not believe that Stroh demonstrated such
moral turpitude as to forever bar him from the
practice of law. It appears that Stroh's initial conversation with and letter to the
police officer were with the prosecuting attorney's consent and knowledge. This indicates
that Stroh did not set out on a deliberate course of illegal conduct. We are
also sensitive to the fact
[***9] that Stroh abandoned his appeal of the conviction in reliance on the Board's
dismissal of his
disciplinary case at the urging of his partners to put the matter to rest.
A more crucial issue than the
seriousness of the crime is whether the applicant is rehabilitated.
E.g., In re Walgren, at 561. We agree with the Board's analysis that it is unlikely that Stroh
will engage in the future in conduct such as that which led to his witness
tampering conviction.
D
The sufficiency of the punishment and the making or failure to make
restitution where required.
A goal of attorney
discipline is to punish an attorney sufficiently to assure that the offense will not be
repeated.
In re Krogh, 85 Wn.2d 462, 479, 536 P.2d 578 (1975). Stroh has served 30 days in jail and 150 hours of
community service with the King County Fire Protection District, and has paid a $ 500 fine.
There was no issue of
restitution in this case. The offense for which he was
convicted occurred more than 10 years ago, and Stroh has testified to extreme shame and
humiliation as a result of his
disbarment. Stroh has been sufficiently punished for the offense leading to his
disbarment.
[*416] E
[***10]
Stroh's attitude, conduct, and
reformation subsequent to
disbarment.
The majority of the Board of Governors found
"Mr. Stroh's general attitude, conduct and
reformation subsequent to
disbarment have been of a level and quality to support
reinstatement." Finding of fact 5. Testimony of witnesses familiar with Stroh's business
conduct after
disbarment supports this finding. Stroh's friends
assert that he was not bitter about his
disbarment, despite the hardship and embarrassment it caused him. Nevertheless, the
dissents to the Board of Governors' ruling point to incidents which, viewed
cumulatively, might cast doubt as to Stroh's attitude, conduct and
reformation.
1. Holding himself out as an attorney. Stroh was very careful not to perform
the functions of an attorney after
disbarment. However, his name continued to appear in the Directory of Attorneys of King
County, published by the Daily Journal of Commerce, including the 1986
directory. Apparently he told his secretary to remove his attorney listing
from the telephone company phone book, but he did not follow up on this matter
to ensure that his name was actually removed from the directory. In addition,
Stroh
[***11] continued to write checks imprinted with his name and the words
"Attorney at Law" after his
disbarment until some time in 1984. Furthermore, Stroh displayed for some time his
license to practice law in his
private brokerage office, albeit on a wall not visible to visitors.
[**695] We agree with the dissents to the Board's recommendation that Stroh's conduct
was improper. After
disbarment, Stroh should have scrupulously avoided giving any impression that he was a
licensed attorney. Nevertheless, we find that the foregoing incidents reveal
carelessness rather than any conscious attempt to deceive. We find that at no
time did Stroh attempt to
practice law or profit from giving the impression that he was a lawyer.
2. Nondisclosure of conviction. In his applications for real estate
salesperson's and broker's licenses, Stroh answered
[*417]
"no" to the question,
"Have you ever been
convicted of a crime?" However, in his petition for
reinstatement, Stroh stated that he had fully disclosed his conviction, sentence and
disbarment. In support of this assertion, Stroh attached a copy of a letter he had written
to the Department of Licensing on January 27, 1983. That letter
[***12] not only fails to reveal the fact of conviction (calling the
conviction a mere
"allegation"), but also wrongly states that Stroh was
"disbarred for a period of three years" because he had merely
"technically violated the code of ethics". The letter further wrongly states that Stroh would be entitled to
practice law after May of 1985, and that the
hearing examiner had found that Stroh's conduct was within the scope of plea bargaining. In
sum, the letter is characterized by understatement and innuendo, and is in fact
false in several respects. Stroh testified, however, that he had orally
corrected and clarified the letter, and had fully informed the Department of Licensing
of his conviction and
disbarment. We defer to the Board of Governors' factual determination that Stroh did in
fact reveal his conviction and
disbarment as he asserted in his petition for
reinstatement that he did.
[2] We note that Stroh was entitled to keep confidential the fact of his
conviction to the Department of Licensing after he obtained the
"Order of Dismissal" of his conviction executed by Judge James Noe on
July 12, 1982. The express language of RCW 9.95.240 entitles Stroh to assert
that he
[***13] has never been
convicted. The statute states:
Every defendant who has fulfilled the conditions of his
probation for the entire period thereof, or who shall have been discharged from
probation prior to the termination of the period thereof, may at any time prior to the
expiration of the maximum period of punishment for the offense for which he has
been
convicted be permitted in the discretion of the court to withdraw his plea of guilty and
enter a plea of not guilty, or if he has been
convicted after a plea of not guilty, the court may in its discretion set aside the
verdict of guilty; and in either case, the court may thereupon dismiss the
information or indictment against such defendant,
who shall thereafter be
[*418] released from all penalties and disabilities resulting from the offense or
crime of which he has been
convicted. The probationer shall be informed of this right in his
probation papers:
Provided, That in any subsequent prosecution, for any other offense, such prior
conviction may be pleaded and proved, and shall have the same effect as if
probation had not been granted, or the information or indictment dismissed.
(Italics ours.) RCW 9.95.240.
[***14]
We find that the evidence supports the Board's determination that Stroh's
general attitude, conduct and
reformation subsequent to
disbarment have been of a level and quality to support
reinstatement.
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 applicant to demonstrate actual
conduct worthy of trust and confidence.
In re Lonergan, 23 Wn.2d at 771. The sufficiency of time determination is made by weighing the nature of the
offense against the time which has
elapsed subsequent to
disbarment.
In re Walgren, at 566. Stroh was
disbarred more than 5 years ago on May 12, 1982.
[**696] The incident leading to his
disbarment occurred 10 years ago. Giving due consideration to the
seriousness of the incident leading to
disbarment, we find that Stroh has demonstrated conduct making him worthy of
reinstatement over a sufficient period of time.
G
Current
proficiency in the law.
Before
reinstatement, Stroh will be required to pass the
bar examination, which will afford him the opportunity to demonstrate his
proficiency in law. RLD 9.7(a).
H
Stroh's
[***15]
sincerity,
frankness, and
truthfulness in
presenting and discussing the factors relating to his
disbarment and
reinstatement.
[*419]
Stroh did not aggressively bring up the circumstance of his
disbarment to each potential business associate upon first acquaintance. It appears,
however, that Stroh had the habit of discussing his
disbarment candidly when asked, or after a longer business relationship developed. We
agree with the Board that Stroh has satisfactorily demonstrated this final
criterion for
reinstatement.
Conclusion
We agree with the Board of Governors that Stroh has met his burden on each of
the elements required for
reinstatement. We applaud the thoroughness of special counsel
in the investigation of this matter.
Hugh Stroh is hereby reinstated subject to his passing the
bar examination and fulfilling all requirements imposed by the bar association on attorneys
practicing in this state.
