State v. Russo

Per Curiam:

In these original proceedings, Anthony R. Russo, a former attorney disbarred by consent, petitions the Supreme *6Court seeking reinstatement as an attorney and readmission to the bar of Kansas.

The petitioner was first admitted to the practice of law in Kansas in 1962 and thereafter practiced law in Wyandotte County until he voluntarily surrendered his certificate and privilege to practice law on June 17, 1976, following the institution of disciplinary proceedings. On November 14, 1973, petitioner was charged in a grand jury indictment in the United States District Court for the District of Kansas with conspiracy to violate the Kansas laws against prostitution and bribery as precluded by the criminal laws of the United States, 18 U.S.C. § 1952 and 18 U.S.C. § 371. The charge grew out of the operation of certain houses of prostitution in Wyandotte County by a client of the petitioner and allegations that the client conspired with Mr. Russo to bribe certain police officials and thereby obtain protection from raids upon the houses of prostitution, and the enforcement of the criminal laws relating to prostitution. Mr. Russo went to trial before a jury and was convicted. His conviction was affirmed by the United States Circuit Court of Appeals, Tenth Circuit, in United States v. Russo, 527 F.2d 1051 (1975), cert. denied 426 U.S. 906 (1976).

Following his conviction in federal district court, the disciplinary administrator filed a complaint against Mr. Russo on June 12, 1974. Proceedings on the complaint were held in abeyance pending the outcome of an appeal. After exhausting his appeals, Mr. Russo voluntarily surrendered his certificate to practice law in Kansas and the same was accepted by the Supreme Court on June 24, 1976. In re Russo, 220 Kan. 181, 551 P.2d 787 (1976). Petitioner served approximately seventeen months at the United States Penitentiary in Leavenworth and was released November 22, 1977. Petitioner also paid a $10,000.00 fine.

On February 13, 1980, Mr. Russo filed a petition with this court seeking reinstatement to practice law pursuant to Rule 219 (225 Kan. lxxxix). The matter was then referred to the disciplinary administrator and assigned to a panel of the Kansas Board for Discipline of Attorneys for investigation and recommendation. On June 13, 1980, a hearing was held before the panel in the Municipal Office Building at Kansas City, Kansas. No objections were made to the notice of hearing, the composition of the hearing panel or the proceedings before the panel. Numerous *7reputable citizens appeared before the panel to urge the reinstatement of the petitioner and to vouch for his good character and reputation. No evidence or testimony adverse to the petitioner was presented by the disciplinary counsel. The transcript of the proceedings covers 251 pages of testimony presented by twenty-five witnesses for the petitioner, including his testimony. It would serve no useful purpose to detail the testimony and suffice it to say it was all favorable to petitioner. Nine exhibits were offered and admitted on behalf of the petitioner and the disciplinary administrator introduced four exhibits.

On September 12, 1980, the hearing panel filed its report detailing the evidence presented together with its findings and unanimously recommended that petitioner be reinstated to the practice of law in Kansas upon the successful passing of the Kansas bar examination. As the report of the panel was favorable, the petitioner filed no exceptions to the report and took no further action, all as contemplated by Rule 219(c).

On October 31, 1980, this court issued its order denying the petition for reinstatement. On November 10, 1980, the petitioner filed a motion for rehearing or modification which was considered by the court and denied on December 10, 1980. On December 24, 1980, petitioner filed a motion for an order allowing him to file a brief presenting constitutional questions alleging that his constitutional rights to due process and equal protection had been violated. This motion was granted, petitioner and the office of the disciplinary administrator have filed briefs, the complete transcript of the proceedings before the panel has been made a part of the record and the court has now studied and considered the petition for a third time, along with the complete record. A majority of the members of this court remain of the opinion the petition of Mr. Russo for reinstatement should be denied.

At the outset we note that the reports and recommendations of the Board for Discipline of Attorneys and its hearing panels are advisory only and not binding upon the court. Rule 212(f), 227 Kan. xxvii; State v. Phelps, 226 Kan. 371, 598 P.2d 180 (1979), cert. denied 444 U.S. 1045 (1980); In re Dunn, 223 Kan. 9, 569 P.2d 366 (1977).

Petitioner argues that the orders of this court entered October 31, 1980, and December 10, 1980, were arbitrary and discrimina*8tory because the court did not have, and obviously had not considered, an actual transcript of the proceedings held on June 13,1980, before the panel. Thus, it is contended petitioner’s right to due process of law was violated. Petitioner also contends his constitutional rights to equal protection of the laws have been violated. We do not agree. The report of the hearing panel reviewed in detail and itemized the thirteen documentary exhibits, identified the twenty-five witnesses who testified and summarized at length the testimony of the witnesses. An actual detailed examination and consideration of the entire transcript and documentary evidence merely confirms that the court was fully cognizant of the proceedings before the panel and the nature and extent of the evidence considered by the panel. Petitioner’s claim that he has been denied due process of law is without merit.

The fundamental question raised by petitioner is whether this court in a disciplinary or reinstatement proceeding may make a determination contrary to the recommendations of the hearing panel. While the evidence before the panel indicates that many respected members of petitioner’s community sincerely believe that he has been totally rehabilitated and should be again admitted to the practice of law, it is this court’s duty to determine whether the readmission of Mr. Russo to the practice of law would be in the best interests of justice and the people of the State of Kansas.

Petitioner, to avoid further disciplinary proceedings, voluntarily relinquished the privilege to practice law which had been granted to him in 1962. Such action was not taken lightly by petitioner and did not come about until over two years had elapsed from the time of his conviction and the filing of the complaint by the disciplinary administrator. During such period petitioner was involved in appealing his conviction as he had every right to do. However, once that conviction became final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction. Rule 202 (225 Kan. lxxxi); In the Matter of Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975). Although Mr. Russo contends to this day that he is innocent of the charges against him, the conviction must stand as a conclusive determination on the issue of his guilt to conspire with others to violate the laws against prostitution and to bribe police officers.

*9It is the duty of the Supreme Court to preserve the high ethical and moral standards required before a person is entitled to enjoy the privilege to practice law. When one first petitions for admission to the bar, he must meet the qualifications required of a member of the profession. When a former attorney seeks reinstatement, he must meet an even greater burden than when he was originally admitted and must overcome the prior adverse conclusions of the court as to his fitness to practice law. Matter of Keenan, 313 Mass. 186, 221, 47 N.E.2d 12 (1943); State, ex rel. Sorensen v. Goldman, 182 Neb. 126, 153 N.W.2d 451 (1967). Although it may be said that Mr. Russo “voluntarily” surrendered his certificate to practice law, the same was only done when it became apparent that disbarment was inevitable, and such surrender constitutes a voluntary disbarment. The decision whether reinstatement of an attorney is justified and will be granted rests exclusively within the discretion of the court (Application of Daniel, 315 P.2d 789 [Okla. 1957], 70 A.L.R.2d 265; In re Bennethum, 278 A.2d 831 [Del. 1971]) and the public interest in maintaining the integrity of the administration of justice is paramount in making such a determination.

A review of the cases concerning reinstatement to the practice of law discloses several factors which have been traditionally considered by the courts. These factors include: (1) the present moral fitness of the petitioner, (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, (3) the extent of petitioner’s rehabilitation, (4) seriousness of the original misconduct, (5) conduct subsequent to discipline and (6) the time which has elapsed since the original discipline. See Annot., 70 A.L.R.2d 268. Additional factors include (1) the petitioner’s character, maturity, and experience at the time of disbarment and (2) the petitioner’s present competence in legal skills. In re Brown, _ W. Va. _, 273 S.E.2d 567 (1980).

In In re Brown, it was determined that reinstatement should be denied based solely upon the serious nature of the criminal conviction and its adverse effect upon the legal profession and the administration of justice. Brown had been convicted of a violation of 18 U.S.C. § 371, based upon charges involving conspiracy to bribe certain public officials, the same offense for which Mr. *10Russo was convicted. Brown was also convicted of bribery of a juror. In denying reinstatement the West Virginia court stated:

“Woven throughout our disciplinary cases involving attorneys is the thought that they occupy a special position because they are actively involved in administering the legal system whose ultimate goal is the even-handed administration of justice. Integrity and honor are critical components of a lawyer’s character as are a sense of duty and fairness. Because the legal system embraces the whole of society, the public has a vital expectation that it will be properly administered. From this expectancy arises the concept of preserving public confidence in the administration of justice by disciplining those lawyers who fail to conform to professional standards.
“Because of the extremely serious nature of applicant’s original offense of bribing a juror when coupled with the separate conviction of conspiring to bribe public officials, we cannot help but conclude that his reinstatement would have a justifiable and substantial adverse effect on the public confidence in the administration of justice. The nature of these crimes directed as they are to the core of the legal system and the integrity of governmental institutions demonstrates a profound lack of moral character on the part of the applicant.
“We have held in Smith that the seriousness of the underlying offense leading to disbarment may, as a threshold matter, preclude reinstatement such that further inquiry as to rehabilitation is not warranted. The offenses involved in this case manifestly meet this test and for this reason applicant’s petition for reinstatement is denied.” _ W. Va. at _, 273 S.E.2d at 570 and 574.

In two recent cases the Supreme Court of Maryland denied reinstatement over the recommendations of the hearing panel and the review board that the attorneys be reinstated. The two cases were consolidated and involved Frances Dippel, who was convicted of embezzling clients’ funds, and Thomas Raimondi, who was convicted of attempting to bribe a member of the General Assembly of Maryland. In re Raimondi and Dippel, 285 Md. 607, 403 A.2d 1234 (1979). Both were denied reinstatement based upon the gravity of the original misconduct. The circumstances surrounding Raimondi’s petition are amazingly similar to the instant case. Raimondi had been convicted of attempted bribery of a public official and was disbarred by consent on December 29, 1972. Raimondi was imprisoned and released from confinement in 1973. Unlike the present petitioner, he was granted a full pardon on May 27, 1975. At the hearing on his petition he produced, as did Mr. Russo, a number of individuals who praised him highly and testified to what a fine gentleman he was. He demonstrated substantial involvement in fraternal and civic affairs. Four and one-half years had elapsed since his resignation. During that time he had obtained a master’s degree in public *11administration and served two and one-half years as a hearing officer in the Insurance Division for the State of Maryland. The hearing panel and review board both found present fitness to resume practice and recommended reinstatement. In disposing of these requests, the following language of the Court is particularly pertinent:

“Where there has been a disbarment for crimes such as were committed by Dippel and Raimondi we regard the nature of the crimes and the circumstances surrounding them as one of the most important of the criteria to be considered on an application for reinstatement. Therefore, we focus in these two cases on the nature and circumstances of the original conduct.
“It may not have been so labeled, but what courts do when faced with any application for reinstatement from a previously disbarred lawyer is to engage in a balancing process. On one side of the scale is placed the seriousness of the misconduct which produced disbarment and the court’s duty to society at large to see that only those persons who are worthy of the faith and confidence of the general public are permitted to handle the affairs of others. In this regard, it must be remembered as Chief Justice Vinson said in In Re Isserman, 345 U.S. 286, 289, 73 S.Ct. 676, 97 L.Ed. 1013 (1953), reversed on other grounds, 348 U.S. 1, 75 S.Ct. 6, 99 L.Ed. 3 (1954), ‘There is no vested right in an individual to practice law. Rather there is a right in the Court to protect itself, and hence society, as an instrument of justice.’ On the other side are placed the subsequent conduct and reformation of such individual, his present character, his present qualifications and competence to practice law, and the fact that the very nature of law practice places an attorney in a position where an unprincipled individual may do tremendous harm to his client. In this balancing process consideration must be given to the length of time which has elapsed since disbarment. Also, it must not be forgotten that a disbarred attorney was previously found to possess good moral character. Otherwise, he would not have been admitted to practice law. Thus, either someone erred in the earlier evaluation of his character or the weakness of character producing the earlier misconduct previously failed to manifest itself. For this reason such an applicant must undergo an even more exacting scrutiny than he did earlier. In evaluating the statements from others as to the present good moral character of an applicant for readmission it must not be forgotten that a disbarred lawyer - - like many people convicted of so-called ‘white-collar’ crime - - had earlier occupied a position in society where it is probable that testimonials as to his good moral character, similar to that elicited in connection with his application for reinstatement, could have been obtained at any point in time prior to knowledge of his misconduct on the part of those attesting to his good character.
“Raimondi was convicted of an attempt to bribe in connection with the highly unusual situation in which the General Assembly of Maryland was obliged to elect a Governor to serve a little more than two years of the remaining term of the Governor previously elected by the people. Such conduct strikes at the very fundamentals of our government, and the more so when it is perpetrated by a *12member of the Bar sworn to support the Constitution and laws of this State. See Maryland Code (1957) Art. 10, § 10.
“Balancing all of the above mentioned factors and particularly taking into consideration the conduct for which Messrs. Dippel and Raimondi were disbarred and the time which has elapsed since then, we are unwilling to once again constitute them officers of this Court, thereby placing them in a position where they may handle the affairs of others. Thus, their petitions for reinstatement will be denied.” 285 Md. at 617-620. (Emphasis added.)

Conspiracy to bribe a police officer in order to protect and promote other illegal activities is an offense that is totally repugnant to the administration of justice and the duties of an attorney who has taken a solemn oath to uphold the constitutions and laws of the United States and the State of Kansas. Such an offense strikes at the very heart of our criminal justice system and if tolerated could completely destroy our system of justice as it has always existed in this country. It is obvious from the cases that each petition for reinstatement must be considered on its own merits and that such decisions must be made on a case by case basis depending upon the facts involved. The refusal to grant Mr. Russo reinstatement to practice law in spite of the recommendations of the hearing panel does not deprive him of equal protection of the law. Considering the gravity of the offense for which petitioner was originally convicted, a majority of this court is of the opinion that the petition of Anthony R. Russo for reinstatement at this time to the practice of law in Kansas must be and is hereby denied.