Kwasnik v. State Bar

LUCAS, C. J.

I dissent. Petitioner’s conduct in relation to the wrongful death judgment against him, during proceedings before the Florida bar, and in the course of these proceedings indicates fundamental defects in moral character that warrant refusal to admit him to the practice of law in California. By focusing on each incident of petitioner’s misconduct in isolation, the majority misses the larger picture. In the process, it misinterprets federal bankruptcy law and reaches a result contrary to our precedents.

It is useful to note at the outset what this case is not about. It is not about whether petitioner should be held to blame for the consequences of his drunk driving in 1970. It is not about his moral or legal right to avail himself of the bankruptcy laws. Finally, it is not about whether we “condone” his misconduct. Except insofar as petitioner’s fitness to practice law is concerned, none of these questions is ours to answer. By losing sight of this fact, the majority fails to focus properly on the misconduct that is relevant to petitioner’s fitness to practice: a continuing pattern of dishonesty, lack of candor, and evasion of legal and moral duties.

*1083Rather than reiterate the facts, which I leave to the concurring opinions of Justices Arabian (see Arabian, J., ante, conc. opn. at p. 1082, fn. 5) and Kennard (see Kennard, J., ante, conc. opn. at p. 1079, fn. 3), I will focus on two shortcomings that pervade the majority opinion. First, I submit that its resolution of the legal issues raised by petitioner’s discharge in bankruptcy is incorrect and inconsistent with our precedents. It should by now be beyond question that, in considering a person’s moral fitness to practice law, we may take into account the implications of the discharge of a debt, particularly when accompanied by misconduct suggesting that the debtor lacks awareness of the moral implications of his wrongs. Second, I do not agree that petitioner’s conduct over the past decade either indicates good moral character on its face or is so probative of rehabilitation from prior misconduct that his admission to the practice of law is warranted at this time.

A. Federal Law Does Not Prohibit Consideration of Petitioner’s Bankruptcy and Accompanying Misconduct

As the majority notes, a governmental unit may not deny a license to a person “solely because” he “has not paid a debt that . . . was discharged under the Bankruptcy Act.” (11 U.S.C. § 525(a) (hereafter section 525(a).) For two reasons, I disagree with the majority’s conclusion that refusing to certify petitioner on the evidence presented would violate this principle. (See maj. opn., ante, p. 1070.)

First, as Justice Arabian points out, petitioner has committed numerous acts indicating fundamental disregard for the suffering of others and basic dishonesty in dealing with the consequences of his actions. (See Arabian, J., ante, conc. opn. at p. 1080.) These acts involve “moral turpitude, dishonesty, or corruption” that would justify discipline if petitioner were already a member of the bar (Bus. & Prof. Code, § 6106), irrespective of and in addition to the discharge itself and the unlawful act giving rise to the debt. Denying him admission to the practice of law would be justified by this overarching pattern of abuse, not his failure to pay a discharged debt. Certainly it would not be “solely because” of the discharge. Thus, contrary to the majority’s holding, the antidiscrimination rationale of section 525(a) is not implicated in this case, and no supremacy clause issue is presented.

Second, even if the sole issue in this case were petitioner’s failure to pay a debt discharged in bankruptcy, our decisions make clear that section 525(a) does not foreclose consideration of the continuing indebtedness as an indicator of lack of rehabilitation from prior defects in moral judgment. This is the central teaching of Brookman v. State Bar (1988) 46 Cal.3d 1004 [251 Cal.Rptr. 495, 760 P.2d 1023], and Hippard v. State Bar (1989) 49 Cal.3d *10841084 [264 Cal.Rptr. 684, 782 P.2d 1140]. The majority attempts to distinguish these cases. I submit neither is distinguishable in any principled manner.

In Brookman, we held that section 525(a) does not prohibit the state from requiring an attorney to make restitution of a discharged debt as a condition of disciplinary probation. (Brookman, supra, 46 Cal.3d at p. 1009.) It is true, as the majority here points out, that Brookman, unlike this case, involved a debt owed “as the result of professional misconduct” to a governmental unit rather than the victim of such misconduct. (See maj. opn., ante, pp. 1073-1074.) Neither the source of the debt nor the identity of the creditor, however, is material to the primary reason why we there upheld the restitution condition: “Such restitution is not imposed ‘solely because’ the attorney has failed to pay a debt discharged in bankruptcy; instead, it is imposed to protect the public and to help rehabilitate the State Bar member.” (Brookman, supra, 46 Cal.3d at p. 1008.) Whether or not the debt stems directly from professional misconduct or is owed to a governmental unit, Brookman holds that we may consider its payment as an indicator of remorse and rehabilitation.1 Because petitioner’s rehabilitation from a course of dishonest and evasive behavior is certainly at issue in this case, we would not violate section 525(a) by considering petitioner’s failure to pay his debt.

If the majority acknowledged this fact, it would also recognize that petitioner’s discharge of and subsequent failure to pay his debt is highly relevant as an indicator of his lack of integrity in matters bearing intimately on his legal dealings. While testifying during these proceedings, petitioner contended that the discharge eliminated not only his legal obligation to repay his victims, but also his moral obligation to do so. His utter lack of remorse, combined with his continuing pattern of evasion and dishonesty over a 10-year period, warrants our refusal to admit him to practice law.

In Hippard, supra, 49 Cal.3d 1084, we held that discharge of a debt may be considered as an indicator of rehabilitation in a reinstatement proceeding *1085even though the petitioner acknowledged the discharge did not remove his moral obligation to repay his victims. (Hippard, supra, 49 Cal.3d at pp. 1090, 1095.) As Hippard instructs, “Restitution is to be considered as a factor in the overall factual showing made by the individual seeking reinstatement. The weight that should be attached to whether restitution has been undertaken in whole or in part is dependent upon the applicant’s ability to restore the misappropriated funds as well as the attitude expressed regarding the matter .... In this context, the significance of restitution is its probative value as an indicator of rehabilitation, not the repayment of the underlying indebtedness.” (Id. at p. 1093; see also Brookman, supra, 46 Cal.3d at p. 1009.)

When viewed in this context, petitioner’s failure to pay his debt or acknowledge any continuing moral obligation is highly probative. As the evidence indicates, not only does petitioner possess the means to pay at least part of his debt, his attitude regarding the matter as a whole is hardly exemplary. His testimony that he no longer has any moral obligation to the victims of his drunk driving is but the latest indicator of his failure to “confront, in concrete terms, the harms his actions have caused.” (Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 [93 L.Ed.2d 216, 228, 107 S.Ct. 353].) This failure, along with his recurrent dishonesty, warrants our refusal to admit petitioner to the practice of law.

The majority also errs in attempting to distinguish this case from Brook-man and Hippard on the ground that here petitioner’s debt is “the result of an isolated 20-year-old drunk driving incident” rather than professional misconduct, and therefore is irrelevant to the State Bar’s interest in protecting the public from further misconduct. (See maj. opn., ante, p. 1074.) The origin of the debt should not be our focus here. Certainly it was not in either Brookman or Hippard. As these cases implicitly recognize, such a focus would convert the protection of section 525(a) into something much broader than was undoubtedly intended by Congress. (See ante, p. 1084, fn. 1.) The question is simply whether petitioner’s course of conduct in the years following his drunk driving—not the drunk driving itself, or the judgment resulting therefrom—indicates lack of good moral character. Section 525(a) is irrelevant to this inquiry.

The majority here does not suggest that Brookman and Hippard were wrongly decided. By limiting them to their facts, however, it necessarily and without reason undermines their holdings. Instead, we should reaffirm that nothing in section 525(a) limits consideration of petitioner’s failure to pay his discharged debt as one indicator—among many—of his poor moral character. Following our precedents, we should refuse to admit petitioner to the bar.

*1086B. The Evidence, Viewed as a Whole, Indicates Lack of Both Present Good Moral Character and Rehabilitation From Past Wrongs

The majority concludes that petitioner has shown a prima facie case of present good moral character (and necessarily of rehabilitation from prior acts indicating moral turpitude) (see maj. opn., ante, p. 1068), and that the State Bar fails to show otherwise. I disagree with both conclusions.

The majority’s finding that petitioner has fulfilled his burden of showing rehabilitation rests on four factors. First, petitioner has introduced 15 letters from lawyers, judges, and a pastor attesting to his character. Second, he has practiced law in New York for over 20 years without any disciplinary record. Third, he has acted diligently in his capacities as an attorney and trustee of a trust established for his paraplegic cousin. Fourth, the Florida Supreme Court admitted him to the practice of law in 1987. (See maj. opn., ante, pp. 1068-1069.) Although at least the first three of these factors carry some weight in evidence of petitioner’s good moral character, I do not believe they are as persuasive as the majority indicates. Similar, if not stronger, evidence of rehabilitation was presented in Hippard, supra, 49 Cal.3d at page 1090, in which we refused to reinstate the petitioner to the practice of law despite, inter alia, 27 letters on his behalf and the lapse of 10 years following his misconduct. In my view, petitioner’s evidence similarly does not prove good moral character in this case.

The amount of evidence of rehabilitation required to justify admission varies according to the seriousness of the misconduct at issue. In this respect, the majority gives insufficient consideration to the severity and recurrent nature of petitioner’s misconduct, which extended into these very proceedings. In part, this shortcoming results from its preliminary observation that because petitioner’s misconduct is “not in any way related to [the] practice of law,” we should accord it “less weight than we would professional misconduct in evaluating his moral fitness for admission to the bar.” (See maj. opn., ante, p. 1069.) As Justice Arabian points out, this assumption is unwarranted and illogical. (See Arabian, J., ante, conc. opn. at p. 1081, fn. 2.)

We have never suggested that the probative value of misconduct involving moral turpitude or dishonesty varies according to whether it occurs in the practice of law. Indeed, as noted above (see ante, p. 1084, fn. 1), California law provides exactly the contrary. (See Bus. & Prof. Code, § 6106.) Thus, if petitioner has engaged in acts involving dishonesty (as the majority at least tacitly recognizes by focusing its discussion on petitioner’s “rehabilitation”), it should make little difference whether or not those acts involved the practice of law. This should be particularly true in admission proceed*1087ings, in which most persons in petitioner’s position have no legal experience to be assessed.

Moreover, the majority’s assumption that petitioner’s misconduct is in fact not “related to the practice of law” is far from warranted. It is undeniably true that drunk driving, or filing for discharge of a debt, is not necessarily related to the practice of law. Petitioner’s drunk driving and ensuing bankruptcy, however, are not the misconduct alleged in this case. Rather, the true issue is petitioner’s dishonesty and disrespect for the legal process. His repeated intentional misrepresentations—false testimony in a 1972 deposition, false statements in a 1980 application for admission in Florida, false statements to an opposing attorney in 1980, misleading descriptions in his 1985 California bar application, and lack of candor in a 1986 Florida rehabilitation hearing—are unquestionably “related to the practice of law.” By suggesting otherwise, the majority mischaracterizes their relevance to these proceedings and colors its discussion of their severity.

It is true, as Justice Arabian notes, that most of petitioner’s misconduct occurred relatively long ago. Although for this reason the case is a close one, in my view the misconduct is not remote enough to warrant a conclusion that he should be admitted to practice.

The ultimate issue in these proceedings is whether we have faith, based on the evidence before us, that petitioner will uphold the duties of an attorney—that he will conduct his professional affairs with integrity and in an honest manner that will inspire public confidence in the profession. I cannot conclude he will. Within the past five years, petitioner has repeatedly made misrepresentations indicating failure to come to grips with his past. These misrepresentations concern not only the wrongful death judgment against him, but also matters such as his past employment and the reasons for termination thereof. In addition, petitioner has at no time during these proceedings indicated the sort of remorse for his past misconduct that inspires the confidence in his moral fitness we should here require. For these reasons, I would deny petitioner admission to practice law in California.

Indeed, to hold that section 525(a) forecloses consideration of nonpayment of a discharged debt unless the debt is owed as a result of professional misconduct would make little sense. The pertinent inquiry in these proceedings is simply whether the debt (or its discharge) flows from or is evidence of some conduct indicating moral turpitude. Even in disciplinary cases (as opposed to ones involving admission to the bar), we have never suggested that acts involving moral turpitude are insulated from scrutiny by the bar if they were not committed in the course of professional conduct. Indeed, a California statute expressly states that acts involving “moral turpitude, dishonesty, or corruption, whether . . . committed in the course of his relations as an attorney or otherwise,” constitute grounds for an attorney’s disbarment or suspension. (See Bus. & Prof. Code, § 6106.) I doubt the majority intends to suggest that a person can circumvent professional discipline or inquiry into his good moral character by filing for discharge of a debt resulting from acts of moral turpitude in a nonlegal capacity. Unfortunately, its reasoning effectively achieves this result.