Hippard v. State Bar

PANELLI, J.

I respectfully dissent. The majority relies upon petitioner’s failure to have made restitution for debts discharged in bankruptcy in finding him insufficiently rehabilitated to warrant reinstatement. I believe that our refusal to reinstate petitioner because he has not made restitution of those debts unconstitutionally contravenes federal bankruptcy law.

While giving weight both to disciplinary recommendations of the Review Department of the State Bar (review department) and factual findings of the *1099hearing panel in this case, when reviewing a petition for reinstatement, as in all State Bar proceedings, we undertake an independent examination of the record. (Tardiff v. State Bar (1980) 27 Cal.3d 395, 404 [165 Cal.Rptr. 829, 612 P.2d 919].) Final determination of petitioner’s request rests with this court, and we are free to disregard an unfavorable recommendation of the State Bar. (Resner v. State Bar (1967) 67 Cal.2d 799, 805 [63 Cal.Rptr. 740, 433 P.2d 748].)

The review department found that petitioner had the requisite learning in general law to be reinstated, but denied his petition, focusing, as does the majority, on the facts that petitioner (1) failed to fully repay his clients or the State Bar Client Security Fund (Client Security Fund) for moneys he earlier obtained from his clients, and (2) failed to comply as ordered with California Rules of Court, rule 955 (hereafter rule 955) until after he had applied for reinstatement in 1987.

1. Petitioner’s Rehabilitation.

Rule 952(d) of the California Rules of Court requires applicants for readmission to “establish their rehabilitation and present moral qualifications . . . .” (See also rule X, § 101(a), Rules Regulating Admission to Practice Law [“Every applicant shall be of good moral character.”].)

In my view, the evidence amply demonstrates that petitioner is now morally rehabilitated though still financially incapable of making full restitution to his former clients. He presented 27 letters in support of his petition for reinstatement, 15 of which were written by members of the bar and 1 by a superior court judge. Attorney John Trump, petitioner’s current employer, indicated that he would associate petitioner with his law firm if petitioner is reinstated. We have traditionally accorded great weight to attorneys’ and judges’ assessment of an applicant’s moral fitness because current members of the bar are likely to appreciate the stringent moral standards of the legal profession. (Pacheco v. State Bar (1987) 43 Cal. 3d 1041, 1053 [239 Cal.Rptr. 897, 741 P.2d 1138]; Tardiff, supra, 27 Cal.3d at p. 403; see also Rules Proc. of State Bar, div. V, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(e)(vi).) In addition, seven witnesses, including his ex-wife, appeared on petitioner’s behalf at the State Bar hearing and testified to his remorse for his past mistakes and success in overcoming his personal and professional problems. His supporters all testified to his intelligence, honesty and trustworthiness and recommended his reinstatement; those who have known petitioner since the early 1970’s stated that they have witnessed a marked improvement in his personality since that time.

The State Bar challenged several of these testimonials on the ground that the authors did not have personal knowledge of petitioner’s prior *1100misconduct. Several of petitioner’s supporters, however, were in fact his colleagues or friends in the early 1970’s. Most of those who did not meet petitioner,until after he resigned from the bar indicated that petitioner had informed them of his prior wrongdoings. In short, the majority of petitioner’s suppqrters, especially those who are members of the bar, based their assessment of his moral fitness on an awareness that he had previously violated standards of attorney conduct. These testimonials to petitioner’s rehabilitation provide a clearer picture of his present moral character than do offenses from a period in his distant past and adequately demonstrate his rehabilitation. (Pacheco, supra, 43 Cal.3d at p. 1054; Resner, supra, 67 Cal.2d at p. 805.)

In rejecting petitioner’s request for reinstatement, the majority relies almost exclusively on his failure to make restitution to his former clients and the Client Security Fund.1 But restitution is simply one factor of moral fitness and; is not the litmus test for rehabilitation. (Resner, supra, 61 Cal.2d at p. 810.) “The importance of making restitution, and a conclusion respecting the weight which should be attached thereto, should be determined largely by the financial or other ability of the attorney to restore that which he has misappropriated, as well as by his attitude of mind regarding the matter.” (In re Gaffney (1946) 28 Cal.2d 761, 764 [171 P.2d 873].)

Petitioner has stated that he has always felt morally obligated to repay his former clients, even though he is not legally required to pay any debts discharged in bankruptcy. Over the past 12 years, he has attempted at different times to partially repay some of his former clients, has completely paid off Mr. Christian, Ms. Schilder and the Allen Corporation, as well as several other court judgments entered against him, and has kept current on payments for child support and back taxes.2 Pending his readmission, petitioner voluntarily began placing money in an account toward repayment of his former ¡clients and the Client Security Fund, and has indicated an intent to begin a comprehensive payment schedule as soon as his earnings permit,

Record evidence establishes that petitioner’s income and circumstances have not provided him with the ability to make restitution. From 1984 *1101through 1987, he grossed approximately $3,000 per month;3 he now earns approximately $3,500 per month. As an independent contractor, however, he must both withhold taxes and pay office expenses out of his salary. In addition, he pays $225 in monthly child support, $200 per month towards back taxes, and almost $600 monthly to various personal creditors. His take-home pay usually ranges between $1,000 and $1,200; in any event it has never exceeded $1,500. It is not difficult to understand that petitioner has found that providing for his own material support depletes these remaining funds.

In sum, I believe that petitioner has established his burden of proving rehabilitation. (Calaway v. State Bar (1986) 41 Cal.3d 743 [225 Cal.Rptr. 267, 716 P.2d 371] [petitioner reinstated nine years after disbarment for involvement in illegal gambling]; Resner, supra, 67 Cal.2d 799 [petitioner reinstated seven years after disbarment for misappropriation]; In re Gaffney, supra, 28 Cal.2d 761 [petitioner reinstated four years after disbarment for misappropriation].) In the early 1970’s, petitioner’s attempt to support a lifestyle beyond his means, coupled with the pressure from the breakup of his marriage, caused him to violate his professional duties by borrowing from clients and dipping into client trust funds. Without excusing his past misconduct, we should find that petitioner has adequately demonstrated he will not repeat his transgressions. His wrongdoings occurred more than 15 years ago.4 Since then, he has stabilized his life and controlled his finances. He has held a steady job in a law firm for more than five years, earning the respect of his colleagues and supervisors. He has paid off several old debts and has made a good faith effort at beginning a comprehensive repayment schedule. In addition, he has not practiced law for more than 12 years. Dr. Fraser, petitioner’s psychotherapist, feels that petitioner has overcome his selfish tendencies and is now able to maturely handle his personal and professional finances. Dr. Fraser stated that he believes petitioner “would now responsibly handle the finances in a law practice without overextending himself, because of the progress he made in his therapy.”

I believe petitioner has provided clear and convincing evidence of his moral and professional reform, satisfying the requirements for reinstatement.

Moreover, the majority’s action today, refusing to reinstate petitioner because he has not made restitution for debts discharged in bankruptcy, *1102contravenes federal bankruptcy law and thus the supremacy clause of the federal Constitution.

The United States Bankruptcy Code provides in relevant part that a “governmental unit may not deny, revoke, suspend or refuse to renew a license ... of... a bankrupt or debtor under the Bankruptcy Act . . . solely because such debtor is or has been a debtor under the Bankruptcy Act... or has not paid a debt that was discharged under the Bankruptcy Act.” (11 U.S.C. § 525(a).)

By refusing to reinstate petitioner almost exclusively because of his failure to make restitution, the majority seeks, in essence, to penalize him for availing himself of the bankruptcy laws.

In Perez v. Campbell (1971) 402 U.S. 637, 648 [29 L.Ed.2d 233, 241, 91 S.Ct. 1704], the Supreme Court stated that the federal bankruptcy laws are designed to give debtors a new opportunity in life, unhampered by the pressure of existing debt. A state statute that coerces a debtor to reaffirm a discharged debt contravenes the purpose of the federal bankruptcy laws, thus violating the supremacy clause of the United States Constitution. (Id. at p. 656 [29 L.Ed.2d at p. 246] [state may not deny driving privileges to applicant who discharged in bankruptcy a judgment arising out of an earlier automobile accident].) Other states, relying on Perez, have declined to refuse reinstatement of an attorney for a failure to to make restitution. (Application of Gahan (Minn. 1979) 279 N.W.2d 826, 829 [4 A.L.R.4th 426] [state bar may not consider applicant’s willingness or ability to repay debts discharged in bankruptcy when judging moral character; it may inquire into conduct leading up to a bankruptcy]; Florida Bd. of Bar Examiners (Fla. 1978) 364 So.2d 454, 460 [state bar may not deny admission based on applicant’s filing for bankruptcy].) The majority thus improperly relies on petitioner’s failure to make restitution either to his former clients or to the Client Security Fund for debts he discharged in bankruptcy as a basis for rejecting his petition for reinstatement.5

*1103In refusing to reinstate petitioner, the majority relies upon our recent pronouncement in Brookman v. State Bar, supra, 46 Cal.3d 1004, that the Bankruptcy Act permits imposition of restitution to the Client Security Fund as a condition of probation in attorney discipline cases.

Two important considerations distinguish Brookman from this case.

First, as discussed below, Brookman’s holding applies only to restitution of government funds, not moneys owed private creditors, and only when the restitution of those funds is not meant as compensation for actual pecuniary loss. Brookman relied on Kelly v. Robinson (1986) 479 U.S. 36 [93 L.Ed.2d 216, 228, 107 S.Ct. 353], which held that restitution of wrongfully received welfare benefits could be made a condition of probation following a subsequent larceny conviction, because such restitution came within a class of payments described in section 523(a)(7) of the Bankruptcy Act. Section 523(a)(7) lists certain “nondischargeable debts,” among them a “fine, penalty, or forfeiture . . . payable to and for the benefit of a governmental unit, and . . . not compensation for actual pecuniary loss.” Following Kelly, we found the restitution ordered in Brookman constitutionally permissible expressly because it would involve no payments to the petitioner’s underlying creditors, but only to the Client Security Fund. (Brookman, supra, 46 Cal. 3d at p. 1009.) The majority here refuses petitioner his license to practice because he failed to make restitution to certain of his former clients, as well as to the Client Security Fund. (Maj. opn., ante, at pp. 1091, 1092, *11041094.) This refusal is not supported by Kelly or Brookman. On the contrary, it impermissibly frustrates the full effectiveness of federal bankruptcy laws as applied to petitioner, by diminishing the effect of the “clean slate” or “fresh start” that the discharge of his debts was designed to afford him. Though the majority holding assertedly serves a purpose (viz, rehabilitation) other than frustration of the bankruptcy laws, it nevertheless impermissibly tends to nullify or thwart the objectives of federal law. {Perez v. Campbell,'supra, 402 U.S. at pp. 651-654 [29 L.Ed.2d at pp. 243-245] [“We can no longer adhere to the aberrational doctrine . . . that state law may frustrate the operation of federal law as long as the state legislature in passing the law had some purpose in mind other than one of frustration.”].)

Second, Ithe petitioner in Brookman did not dispute the need for rehabilitation in his case. {Brookman, supra, 46 Cal. 3d at p. 1007.) The Brookman court, consequently, did not need to consider whether the order in that case amounted to reliance upon what is at most a tangential objective (rehabilitation) as a pretextual means of compelling the petitioner to reaffirm a debt discharged, in bankruptcy. Such a reliance has been declared to be an impermissible derogation of federal bankruptcy law. {Perez, supra, 402 U.S. at p. 652 [29 L.Ed.2d at p. 244].) The majority’s action in this case invites such characterization in citing no significant evidence of petitioner’s lack of rehabilitation apart from evidence relating to his failure to make restitution. (See fn. 1, ante, at p. 1100.)

2. Compliance with Rule 955.

While acknowledging it would not alone support denial of his reinstatement, the majority contends that petitioner’s failure to comply with rule 955 at the 'time of his resignation is a proper factor to consider in light of petitioner’s, asserted lack of rehabilitation. I disagree. The primary purpose of rule 955 is to ensure that all concerned parties, including clients, cocounsel, opposing counsel and any tribunals in which litigation is pending, learn about the State Bar’s discipline of an attorney.6 (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187 [248 Cal.Rptr. 830, 756 P.2d 217].)

At the time of petitioner’s resignation, he had no clients and no pending matters. In fact, he had effectively closed down his law practice a year *1105earlier and at the time of his resignation was already working in the real estate business. Whether he did in fact violate rule 955(a) by failing to mail out notices of his resignation, where required recipients of such notices did not exist, is at best problematic. Petitioner’s alleged violation of the rule therefore stems solely from his failure to file an address with the State Bar.7

However, rule 955 also has a secondary purpose: to keep the State Bar and the court apprised of the location of attorneys who are subject to their disciplinary authority.8 (Lydon, supra, 45 Cal.3d at p. 1187.) In the past, we have held that failure to file an address may be grounds for disbarment. (Lydon, supra, 45 Cal.3d 1181; Powers v. State Bar (1988) 44 Cal.3d 337 [243 Cal.Rptr. 386, 748 P.2d 324].) Both Lydon and Powers are distinguishable from the present case, however. In those cases, the State Bar had attempted on several occasions to communicate with the attorneys involved only to have their letters returned by the postal service. In addition, both Lydon and Powers had failed to appear at several State Bar hearings, including the hearings regarding their alleged violation of rule 955. (Lydon, supra, 45 Cal.3d at pp. 1184-1185; Powers, supra, 44 Cal.3d at pp. 340-341; see also Hamilton v. State Bar (1979) 23 Cal.3d 868, 873-874 [153 Cal.Rptr. 602, 591 P.2d 1254].) Thus, their failure to give the State Bar their addresses seriously hampered the disciplinary process in their cases. In contrast, petitioner has diligently followed all of the State Bar’s procedures. The majority concedes that petitioner’s failure to file an address at the time of his resignation caused no injury to petitioner’s clients and in no way affected its past or present disciplinary proceedings against him, or otherwise inconvenienced the State Bar.9 While not condoning petitioner’s noncompliance with rule 955, we should, under the circumstances, forego exercising our disciplinary power under rule 955(e). (Cf. Durbin v. State Bar (1979) 23 Cal.3d 461, 469 [152 Cal.Rptr. 749, 590 P.2d 876] [failure to file affidavit of compliance with State Bar does not warrant one-year suspension *1106even though noncompliance willful; court ordered six months’ suspension or actual compliance].)

Mosk, J., and Broussard, J., concurred.

Petitioner’s application for a rehearing was denied March 1, 1990. Broussard J., and Panelli, J., were of the opinion that the petition should be granted.

The majority acknowledges that petitioner has made “substantial progress towards rehabilitation.” (Ante, maj. opn. at p. 1095.) Furthermore, the majority concedes that petitioner’s noncompliance with rule 955 would not support a refusal to reinstate him in the absence of concerns about his rehabilitation. (Ante, maj. opn. at p. 1096.) When reviewing “other evidence” which.it finds to indicate a lack of rehabilitation (ante, maj. opn. at p. 1095), however, the majority points only to witness testimony and testimonial letters which assertedly support the view that petitioner should have made restitution.

The record does not reveal the exact amount of personal debt outstanding or the exact number of remaining creditors.

For three consecutive months in 1986 and 1987, the Internal Revenue Service withheld $2,000 from petitioner’s salary to satisfy a lien for back taxes.

The majority’s suggestion (ante, maj. opn. at p. 1096) that they are “denying reinstatement after 10 years” is misleading so far as it leaves its reference point unstated. Petitioner’s misconduct occurred between 1971 and 1975. (Ante, maj. opn. at p. 1088.)

The majority refuses petitioner’s request that he be reinstated with the condition he make restitution of his debts. Neither the Business and Professions Code, Rules of Court nor the Rules of Procedure of the State Bar expressly provide for conditional reinstatement. On the other hand, none of these statutes enjoins the practice. In addition, rule 667 of the State Bar Rules of Procedure does authorize this court to readmit an applicant subject to other conditions, such as passage of the Professional Responsibility Examination or other tests related to learning in the general law. At least nine other states have employed some form of conditional reinstatement. (Disciplinary Proceedings Against Wright (Wis. 1988) 145 Wis.2d 644 [428 N.W.2d 549] [court had earlier conditioned reinstatement on continuing education, one year of professional supervision, medical treatment and restitution to former clients; court suspended attorney for not complying with these conditions]; Louisiana State Bar Ass’n. v. Panel (La. 1988) 534 So.2d 951 [court suspended attorney and conditioned reinstatement on restitution to-former clients]; Gohner v. Zundel (N.D. 1987) 411 N.W.2d 71, 75 [court condi*1103tioned reinstatement on proof of competency to practice]; A tty. Grievance Comm’n. v. Willemain (1986) 305 Md. 665 [506 A.2d 245, 253] [court suspended attorney and conditioned reinstatement on participation in Alcoholics Anonymous program]; Matter of Ortega (1984) 101 N.M. 719 [688 P.2d 329, 333] (court conditioned reinstatement on restitution to former clients]; Matter of Batali (1983) 98 Wn.2d 610 [657 P.2d 775, 39 A.L.R.4th 577] [court conditioned reinstatement on payment of debts previously discharged in bankruptcy but voluntarily reaffirmed; court refused to compel attorney to reaffirm other debts]; In re Neff (Ill. 1980) 413 N.E.2d 1282, 1284 [court suspended attorney after she failed to pay costs of disciplinary proceedings in another state and conditioned reinstatement on repayment of those costs]; Matter of Hickey (N.J. 1976) 350 A. 2d 483 [court conditioned reinstatement on complete restitution]; Comm. on Professional Ethics v. Wright (Iowa 1970) 178 N.W.2d 749, 752 [court conditioned reinstatement on “good faith effort” at restitution to former clients].)

Contrary to the majority’s assertion, a condition of rehabilitation would not be logically inconsistent with a determination that petitioner is rehabilitated. Petitioner’s reinstatement on the condition that he make restitution would not imply any negative judgment about his present moral fitness, but might be adopted for any number of legitimate state purposes, for example, as a means of enhancing public confidence in the legal profession, or simply as an accommodation of petitioner’s request that we provide him with an additional incentive to meet what he has said he regards as his moral obligation to make repayment. Compliance could be monitored by the State Bar using mechanisms already in place for use when such a condition accompanies disciplinary probation. Of course, this would be an appropriate case for conditional reinstatement only if, as the majority contends, the federal bankruptcy laws are no bar to the particular conditions imposed. (Ste Brookman v. State Bar (1988) 46 Cal.3d 1004 [251 Cal.Rptr. 495, 760 P.2d 1023].)

Rule 955(a) reads in pertinent part: “The Supreme Court may include in an order disbarring or suspending an attorney or accepting his resignation a direction that the attorney shall, within such time limit as the Court may prescribe, (1) notify all clients being represented in pending matters and any co-counsel of his disbarment, suspension or resignation and his consequent disqualification to act as an attorney after the effective date of his disbarment, suspension or resignation, and, in the absence of co-counsel, also notify the clients to seek legal advice elsewhere, calling attention to any urgency in seeking the substitution of another attorney or attorneys in his place . . . .”

In November 1987, while his petition for reinstatement was pending, petitioner mailed notices of his prior resignation to all of his former clients and a supporting affidavit along with a current address to the State Bar. As mentioned above, petitioner did not represent these clients at the time of his resignation, since he had closed down his practice a year earlier.

Rule 955(c) reads in pertinent part: “[The] affidavit showing that he has fully complied with those provisions of the order entered pursuant to this rule . . . shall also set forth an address where communications may thereafter be directed to the disbarred, suspended, or resigned attorney.”

It should be noted that the hearing panel did not mention petitioner’s noncompliance with rule 955 in their findings and conclusions and did not consider it a basis for denial of his reinstatement. The review department, however, considered it evidence that petitioner had not demonstrated the adequate level of “exemplary conduct” for reinstatement.