Character & Fitness Committee Office of Bar Admissions v. Jones

KELLER, Justice,

dissenting.

While I agree in principle with the majority’s conclusion that Respondent’s lack of candor and “absurd and disingenuous argument that he actually was paying”1 raise substantial questions about his fitness to practice law in the Commonwealth of Kentucky, this matter is not a disciplinary case, and no alleged violations of the Kentucky Rules of Professional Conduct are properly before this Court. Instead, this case presents only an SCR .2.0422 conditional admission issue, and our only task is to determine whether Respondent has breached the terms of his Conditional Admission Agreement (“Agreement”). While I believe this Court has a duty to enforce strictly the written terms of such an agreement, I cannot agree with the majority’s interpretation.3 As I interpret the Agreement, Respondent remains conditionally admitted to practice law in Kentucky until Respondent demonstrates twelve (12) actual payments towards his student loan debt. While I would not revoke Respondent’s license to practice law at this time, I believe this Court should modify the terms of the Agreement to expedite Respondent’s performance of his obligations.

The Respondent and the Committee dispute the terms of the Agreement itself, and I believe this Court must answer two (2) interpretive questions to resolve that dispute: (1) does the Agreement require twelve (12) actual payments, or did Respondent satisfy its conditions by certifying that no amounts were then due on the *35outstanding loan balance? and (2) is the Agreement itself limited to a term of twelve (12) months duration? I disagree with the majority’s self-labeled “reasonable interpretation,”4 and, after examining the language of the Agreement itself and the correspondence which accompanied it, I interpret the Agreement to require Respondent to make twelve (12) actual payments on his loan. However, I can find no time limitation within which Respondent must make these twelve (12) payments, and I thus interpret the Agreement as open-ended and ongoing.

Although there is no conjunction between Conditions 1(a) and 1(b) in the Agreement itself, I find the fact that the Agreement sets out these conditions in separately identified paragraphs strong evidence that those conditions are independent requirements — monthly proof of payments or other compliance and twelve (12) actual payments in amounts acceptable to the loan program. In addition, the Committee Director’s April 15, 1998 letter, which accompanied the Agreement signed by Respondent, provides further evidence of the nature of the Agreement by phrasing the Agreement’s terms as separate obligations: “[T]he Committee requires: 1). a twelve month period of actual payment in amounts mutually agreed to between you and the William D. Ford Loan institution and, 2). that any periods of nonpayment be pursuant to a process provided for by the Ford Consolidation loan program rather than as a default situation.” As Respondent admits that he has made no actual payments,5 Respondent has not yet complied with this aspect of the Agreement.

I use the word “yet” for an important reason — both the Respondent and the majority are mistaken in their belief that the Agreement contains a twelve (12) month time limitation. The Agreement contains no such limitation. It uses the language “twelve payments” not “twelve months,” and, in fact, the Agreement specifically provides for a period of conditional admission exceeding twelve (12) months by permitting periods of non-payment if Respondent certifies compliance with the loan program. As Respondent has not yet demonstrated that he has made twelve (12) payments, the Agreement remains in effect until he does so.

As the written Agreement does not include a time frame in which Respondent must complete these payments, I cannot conclude that Respondent has failed to comply with Condition 1(b), and I decline to follow the Committee’s recommendation to revoke Respondent’s license to practice law.6 However, I agree with the majority that the underlying factual background in this case suggests a disturbing pattern of *36Respondent’s attempts to circumvent his ongoing obligations under this Agreement. Accordingly, I believe that Respondent’s patent defiance constitutes just cause for this Court to impose additional conditions upon Respondent’s ongoing conditional admission to ensure that Respondent does not linger in “technical compliance” ad infi-nitum without any means for the Committee to verify this status.7

While I would deny the Committee’s recommendation that this Court revoke Respondent’s license to practice law, I would, instead, order the following:

(1) Respondent remains subject to the Conditional Agreement until he has made twelve (12) actual payments on his William D. Ford Consolidation Loan in accordance with a repayment plan and his previous representations that his annual payments would account for approximately twenty percent (20%) of his annual salary;

(2) Respondent must expeditiously begin actual payments on his outstanding student loan balance as specified in (1) above and must complete the last of these twelve (12) actual payments within eighteen (18) months of today’s date;8

(3) Within thirty (30) days of today’s date, Respondent must furnish the documentation previously requested by the Committee and must facilitate the Committee’s responsibility under Condition 2 of the agreement to “monitor the conditions set forth in this Consent Agreement” by timely furnishing documentation in response to future requests;

(4) Pursuant to SCR 2.042(2), the Committee shall continue to monitor Respondent’s compliance with both the original terms of the Consent Agreement and the additional conditions added by this Court.

. Majority Opinion at 31.

. SCR 2.042. Conditional admission.

(1) The Committee may, as a part of its certification process, require that an applicant enter into an agreement as a condition of their admission to the Bar. The conditions of admission as determined by the Character and Fitness Committee shall be set forth in a written agreement with specific terms and conditions. These terms and conditions shall be monitored by the Committee or its agents or designees.
(2) Upon failure to comply with the terms and conditions of the agreement, the Committee may:
(a) extend the term and impose additional condition(s).
(b) recommend to the Court revocation of license.
(3)All information relating to conditional admission of an applicant or an attorney shall remain confidential in accordance with SCR 2.120.
Id.

.See Majority Opinion, supra note 1 at 31 ("Respondent and the Committee dealt at arms length and reached an agreement susceptible to the reasonable interpretation that Respondent would make some payments on his student loan within the next twelve months.').

. Mat31.

. I agree with the majority’s disparaging assessment of Respondent’s contention that he made a "payment” each month in the amount of $0.00.

. I would note, however, that even under my interpretation of the Agreement, Respondent has failed to abide by the terms of Condition 1(a). Respondent’s monthly (and later quarterly) certifications technically conformed to the terms of Condition 1(a) of the Agreement. However, as the Agreement is limited by no term and will conclude only upon Respondent's performance of his obligations under the Agreement, Respondent has a continuing obligation to certify compliance during periods of non-payment, and Respondent has failed to comply with Condition 1(a) since February of 1999 when he last submitted his proof of compliance with the loan program. Movant has not recommended, however, that this Court revoke Respondent's license to practice law because of a failure to comply with Condition 1(a), and bases its recommendation solely upon Respondent’s failure to make the payments required by Condition 1(b).

. See Faust v. Kentucky Bar Association, Ky., 929 S.W.2d 185 (1996) (granting conditional reinstatement with specified conditions).

. Respondent has already had over three (3) years to make the payments required by the agreement, and I believe it more than reasonable to expect him to meet- his obligations in five (5) years.