Kwasnik v. State Bar

KENNARD, J.

I concur in the decision to admit petitioner Richard E. Kwasnik to the practice of law in California. In determining whether an applicant has the good moral character required of attorneys in this state, we are constrained by past decisions of this court, as the majority correctly notes, to focus primarily on the applicant’s conduct during the recent past. By submitting evidence of his admission to practice in New York and Florida and several letters from lawyers and judges attesting to his moral fitness, petitioner has made a prima facie case that he possesses good moral character (see Greene v. Committee of Bar Examiners (1971) 4 Cal.3d 189, 192 [93 Cal.Rptr. 24, 480 P.2d 976]), and his behavior during the past five to eight years, as disclosed by the record before us, does not sufficiently establish a present lack of good moral character.

Nonetheless, it bears emphasis that petitioner’s conduct during an earlier period of his life displayed a marked lack of those qualities of fairness, candor, and trustworthiness required of members of the legal profession. I write separately to emphasize this fact, lest our decision be misinterpreted as condoning petitioner’s earlier behavior or as abdicating our responsibility to ensure that only those attorneys possessed of sound moral character be permitted to practice law in this state.

To qualify for admission to the practice of law in California, an attorney admitted to practice in another state must be “of good moral character.” (Bus. & Prof. Code, § 6062, subd. (b).) This requirement applies also to nonlawyer applicants. (Id., § 6060, subd. (b).) In admission proceedings, the fundamental question is generally considered to be whether the applicant “has committed or is likely to continue to commit acts of moral turpitude.” (Hightower v. State Bar (1983) 34 Cal.3d 150, 157 [193 Cal.Rptr. 153, 666 P.2d 10]; see also, Bus. & Prof. Code, § 481; Konigsberg v. State Bar (1957) 353 U.S. 252, 263 [1 L.Ed.2d 810, 819-820, 77 S.Ct. 722].) This statement *1076aptly describes the practical limits of our inquiry, but unfortunately it conveys a mistaken impression of the moral character requirement.

The term “good moral character” embraces much more than the absence of demonstrated wrongful acts.1 The State Bar’s Rules Regulating Admission to Practice Law provide this definition: “The term ‘good moral character’ includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, knowledge of the laws of the state and the nation and respect for the rights of others and for the judicial process.” (Rules Regulating Admission to Practice Law, rule X, § 101(a).) More than 30 years ago, United States Supreme Court Justice Felix Frankfurter gave this eloquent description of moral character and its specific importance to the legal profession: “[A]ll the interests of man that are comprised under the constitutional guarantees given to ‘life, liberty and property’ are in the professional keeping of lawyers. It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’ ” (Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 247 [1 L.Ed.2d 796, 806, 77 S.Ct. 752, 64 A.L.R.2d 288] (conc. opn. of Frankfurter, J.).)

This is the standard against which petitioner’s conduct is to be measured. The record discloses the following facts bearing upon the issue under consideration.

Driving while intoxicated, petitioner was involved in an automobile accident in which Steven Smilanich was killed. The accident occurred in New York State, where petitioner resided and practiced law; it occurred in 1970, some three years after petitioner had begun his legal career. Smilanich’s widow and three children brought a wrongful death action in which it was determined that petitioner’s negligence had caused Smilanich’s death. Judgment in the amount of $232,234 was entered against petitioner in July 1974. *1077Petitioner’s insurer paid the policy limit of $10,000, leaving an unpaid balance of over $220,000. Petitioner paid nothing on the judgment until the following year when he was served with a notice of levy. Petitioner then made biweekly payments of $42, the minimum required under New York law to avoid wage garnishment. At a postjudgment debtor examination in 1979, petitioner testified falsely that he did not have a joint interest in any checking accounts. Although he earned at least $100,000 between 1975 and January 1980 and lived rent-free in a home owned by his mother, petitioner paid only $4,649 toward the judgment during this time.

In June 1979, petitioner applied for admission to the Florida bar. In response to an inquiry by the Florida Board of Bar Examiners, petitioner falsely represented that he had paid $1,200 per year toward the $232,234 wrongful death judgment. On January 31, 1980, petitioner sent a letter to the attorney representing Smilanich’s widow and children. In the letter petitioner said he was taking a leave of absence from his New York employment, would contact the attorney upon his return, and would notify the attorney if he were to relocate elsewhere. In fact, petitioner had already accepted employment in Florida and moved there the following month. Petitioner made no effort to give his Florida address to the attorney representing the widow and children. By moving to Florida, petitioner avoided the threat of wage garnishment, which is not permitted under Florida law. With his wages safe from garnishment, petitioner made no further payments on the wrongful death judgment. In late 1980, petitioner was denied admission to practice in Florida, based on the finding by the Florida Board of Bar Examiners that petitioner had engaged in a “pattern of conduct and practice, consisting of both outright misrepresentations of fact and shaded representations, calculated to avoid payment of any substantial sum on the judgment against him.”

I interrupt the narrative here to express my agreement with the decision initially denying petitioner admission to the Florida bar. Petitioner’s conduct demonstrated indifference to the moral and legal responsibilities he owed to the widow and children of the man killed by his negligence. Had petitioner applied for admission to practice in this state, the record as it existed at that time would have amply supported the conclusion that he lacked the requisite good moral character. (See generally, Annot., Failure to Pay Creditors as Affecting Applicant’s Moral Character for Purposes of Admission to the Bar (1981) 4 A.L.R.4th 436.)

Petitioner offered $15,000 to settle the wrongful death judgment, which then had an outstanding balance in excess of $220,000. In November 1980, following the rejection of this offer, petitioner filed for bankruptcy. The wrongful death judgment was discharged in the bankruptcy proceeding in *1078March 1981. Petitioner then sought reevaluation of the decision denying him admission to the Florida Bar. When this petition reached the Florida Supreme Court in 1987, the court concluded that the only relevant consideration was whether petitioner could be denied admission based on his failure to pay the wrongful death judgment, or the underlying moral obligation it embodied, after the debt was discharged in bankruptcy. The court held that petitioner still owed a moral obligation to Smilanich’s family,2 but that consideration of this moral obligation after discharge of the legal debt in bankruptcy “would require the making of such subtle distinctions that no satisfactory rule could be devised.” (Florida Bd. of Bar Examiners Re: Kwasnik (Fla. 1987) 508 So.2d 338, 339.) Accordingly, the court held that petitioner could not be denied admission to practice.

The effect of the bankruptcy on the determination of moral character requires some explanation, but I do not propose a detailed treatment of the topic in this concurring opinion. Briefly stated, once a debt has been discharged, neither the debtor’s action in seeking and obtaining the discharge nor the failure to subsequently pay the debt may be used to deny admission to practice law (see 11 U.S.C. § 525(a)); however, the discharge does not insulate from scrutiny the debtor’s conduct before the commencement of the bankruptcy proceeding (see Application of Taylor (1982) 293 Ore. 285 [647 P.2d 462, 465-467]; Application of Gahan (Minn. 1979) 279 N.W.2d 826, 829-832 [4 A.L.R.4th 426]). Thus, the debtor’s failure to make good faith efforts to pay the debt over a period of years, accompanied by a pattern of conduct apparently designed to mislead the creditor and make enforcement more difficult, would support a conclusion that the debtor lacks good moral character.

In the present proceeding, the Review Department of the State Bar Court properly considered petitioner’s predischarge conduct and correctly concluded that it demonstrated lack of good moral character. But nine years have passed since the bankruptcy discharge, and the question that must now be considered is whether petitioner’s subsequent conduct sufficiently shows rehabilitation. (See Pacheco v. State Bar (1987) 43 Cal.3d 1041, 1051, 1057 [239 Cal.Rptr. 897, 741 P.2d 1138].) To encourage moral reformation, bar applicants whose recent conduct is free of reproach are ordinarily rewarded with the opportunity to serve in the legal profession. (Hightower v. State Bar, supra, 34 Cal.3d 150, 157.)

*1079Although there is some evidence that petitioner continues to be deficient in the frankness and candor required of an attorney,3 this evidence is insufficient to overcome petitioner’s prima facie case. We have accorded great weight to the opinions of attorneys and judges regarding an applicant’s moral fitness to practice law. (Pacheco v. State Bar, supra, 43 Cal.3d at p. 1053.) Here petitioner produced an abundance of such evidence, which we are not at liberty to disregard. Also, petitioner has practiced law in New York and Florida for over 20 years without being the subject of disciplinary proceedings. While the issue of petitioner’s present moral character is not entirely free from doubt, all reasonable doubts in admission proceedings are to be resolved in the applicant’s favor. (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 451 [55 Cal.Rptr. 228, 421 P.2d 76].)

For these reasons, I concur in the decision to admit petitioner to the practice of law in California.

As one commentator has written: “To many lawyers, ethical rules are like road signs: not models of good behavior to emulate, but signposts of how much misbehavior is tolerable. The purpose of drawing a line in the sand has been to see how close one can come without stepping over it. This ‘stepping over the line’ mentality continues to color character and ethical assessments. Prospective lawyers learn where the line is and how close to come to it. Character determinations now assess more social conformity than moral integrity. The end result is the inculcation of the widespread minimum morality of ‘how much can I get away with.’ In lieu of this morality of minimal duty, the legal profession needs more uplifting standards of character to inculcate ‘soul’ rather than merely toeing the mark.” (Gerber, Lawyers, Courts, and Professionalism: The Agenda for Reform (1989) p. 69.)

Petitioner testified in the Florida proceedings in 1986 that he recognized a continuing moral obligation despite discharge of the legal obligation in bankruptcy. In the proceedings in this state, however, petitioner stated he has no moral obligation to pay anything on the wrongful death judgment. In his words, “[t]here is no difference between the law and morals.”

On his application for admission to practice in California, petitioner represented that he had left two jobs for “other employment” when in fact his employment had been terminated. When asked about this during the hearing, petitioner testified that he had used the misleading language because “[i]t looks better.”