Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.
I. HISTORY OF PROCEEDINGS
Petitioner, [ ], filed a petition for reinstatement on October 22, 1997. Petitioner was suspended from the practice of law for one year and one day by order of the Supreme Court dated January 31, 1996. Petitioner was suspended as a result of his failure to reveal on his application for admission to the Pennsylvania Bar that he had been arrested in 1985.
Reinstatement hearings were held on April 3, 1998 and April 27,1998 before Hearing Committee [ ] com
The Hearing Committee filed a report on August 14, 1998 and recommended that the petition for reinstatement be granted. No briefs on exception were filed by the parties.
This matter was adjudicated by the Disciplinary Board at the meeting of October 5, 1998.
n. FINDINGS OF FACT
The board makes the following findings of fact:
(1) Petitioner was born on April 2, 1963 and was admitted to the bar in Pennsylvania on January 2, 1991. His current address is [ ].,
(2) On July 8, 1994, a hearing was held on a petition for discipline filed against petitioner arising from his failure to reveal in his application for admission to the Pennsylvania Bar that he had been arrested in 1985.
(3) By order of the Supreme Court of Pennsylvania dated November 16, 1995, petitioner was transferred to inactive status pursuant to Pa.R.D.E. 219, effective December 16, 1995. This transfer was due to petitioner’s failure to pay his attorney’s annual fee.
(4) Petitioner was notified by letter of November 17, 1995 of this transfer and his obligations thereunder.
(5) By order of the Supreme Court of Pennsylvania dated January 31, 1996, petitioner was suspended from the Pennsylvania Bar for a period of one year and one day. This suspension was based on his failure to reveal his arrest on the bar application.
(7) Petitioner failed to provide the mandated notice to the [ ] Bar Association to remove his listing from its legal directory.
(8) In February 1996, petitioner filed a petition, and in March 1996, he filed a supplementary petition. These petitions requested that his suspension be made retroactive to November 16,1995, the date of petitioner’s transfer to inactive status. These petitions were denied by Supreme Court order dated April 8, 1996.
(9) In May 1997, under the caption [ ], Petitioner v. The Disciplinary Board of the Supreme Court of Pennsylvania and The Continuing Legal Education Board of the Supreme Court of Pennsylvania, petitioner filed in the Supreme Court of Pennsylvania an application for leave to file original process and declaratory judgment. This action sought to avoid the requirement that petitioner comply with the provisions of the Pennsylvania Rules of Continuing Legal Education as a condition of his reinstatement.
(10) By order dated August 1,1997, the Supreme Court granted the application to proceed in forma pauperis and denied the petition for declaratory judgment and motion to strike.
(11) On October 22, 1997 petitioner filed the instant petition for reinstatement.
(12) From petitioner’s 1991 admission to the bar to his inactive status in November 1995, his legal employment consisted of a variety of short-term positions. He worked as general counsel to a corporation in Florida for seven months in 1991, although he was not admitted to the bar. From 1993 to 1995, petitioner was employed as general counsel to a Pennsylvania company.
(14) Petitioner completed 37 credit hours of CLE and reads the [ ] and legal treatises. To keep current on the law, petitioner also reads newspapers and watches television news shows pertaining to current legal events.
(15) Petitioner presented the testimony of two character witnesses. [A], Esquire, has known petitioner since law school. [A] testified that he has not talked to petitioner in approximately one year and does not socialize in the same circle as petitioner. (N.T. 4/3/98 pp. 103-104.) [A] testified that he had not discussed petitioner with anyone but the other character witness on the day of the hearing. (N.T. 4/3/98 pp. 103-104.)
(16) [B], Esquire, has known petitioner since law school. Although [B] and petitioner are socially friendly, the witness testified that he never discussed with acquaintances the fact of petitioner’s suspension, and, in fact, petitioner did not tell him of the suspension until sometime after January 1998. (N.T. 4/3/98 pp. 112-13.)
(17) In addition to the various petitions filed by petitioner regarding the disciplinary proceedings, petitioner filed a lawsuit on his own behalf against [C] Company and [D] Insurance. This suit was filed in the United States District Court for the [ ] District of Pennsylvania and involved an accident petitioner suffered in an elevator in Florida.
(18) Petitioner initiated and pursued this litigation even though he was aware that the two-year Pennsylvania stat
(19) Petitioner has a pending application for admission to the Florida Bar. This is the third application filed by petitioner seeking admission in Florida. The other two were denied.
(20) Disciplinary Counsel [ ] suggested to petitioner and his own counsel that petitioner might benefit from discussing a mentor relationship with [E], Esquire, executive director of the [F]. [E] did not and does not employ petitioner, but he testified that he met with petitioner, and while he did not know that their discussions used the term “mentorship,” he said he would be available to petitioner to “discuss problems with him, give him advice....” (N.T. 4/27/98 p. 7.)
III. CONCLUSIONS OF LAW
Petitioner has failed to meet his burden of proving by clear and convincing evidence that he has the moral qualifications, competence and learning in the law required to practice law in this Commonwealth.
Petitioner has failed to demonstrate that his resumption of the practice of law will neither be detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.
IV. DISCUSSION
Pursuant to Pa.R.D.E. 218(a), an attorney who is suspended from the practice of law for a period exceeding
In order for petitioner to gain reinstatement after a suspension exceeding one year, it is petitioner’s burden to prove by clear and convincing evidence that he possesses the moral qualifications, competence and learning in the law necessary to practice law in Pennsylvania, and that the resumption of the practice of law by petitioner will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(i).
In determining whether petitioner clearly demonstrated his present fitness, the board must consider the nature of petitioner’s misconduct, his present competence and legal abilities, his character, his rehabilitation, and the degree of remorse expressed. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).
Petitioner was suspended for his failure to disclose a prior arrest on his Pennsylvania Bar application. Question 14(b) on the application asked: “Have you ever been arrested or prosecuted for any crime (other than a summary motor vehicle violation)?” Petitioner checked the “no” answer box in response. Petitioner was arrested in 1985 on a criminal charge of solicitation.
Petitioner was admitted to the Pennsylvania Bar in January of 1991.
In March of 1991, petitioner applied for the bar in Florida. Question 20a of the Florida Bar application directs applicants to:
“List all instances in your entire life (including while you were a juvenile) in which you have been arrested, detained or restrained, given a warning or taken into cusPage 157tody or accused, formally or informally, of the violation of a law, or ordinance, or accused, formally or informally, of committing a delinquent act.” (Exhibit P-5, p. 7.)
The application includes the following instruction:
“In answering questions 20-21, you are warned that no statute, court order of legal proceeding withholding adjudication, expunging the information required herein, or dismissing, vacating or setting aside any arrest, accusation or conviction, or purporting to authorize any person to deny the existence of such material shall excuse less than full disclosure, Irrespective Of Any Advice From Any Source That Such Information Need Not Be Disclosed.. ..” (Exhibit P-5, p. 7.)
Petitioner checked the “no” answer box in response. The Florida Board of Bar Examiners discovered this omission and denied petitioner’s application. Petitioner later revealed the omission to the Pennsylvania Board of Law Examiners in April of 1992. Disciplinary proceedings followed, resulting in petitioner’s suspension for one year and one day by order of the Supreme Court on January 31, 1996.
Petitioner testified on his own behalf as to the misconduct that led to his suspension. He testified that he failed to reveal the arrest because he was scared of the consequences of disclosing it:
“It’s my belief I was in denial, I was embarrassed and I think I repressed it to some extent. I take full responsibility for it. I am sorry for what I did. I have come a long way.” (N.T. 4/3/98 p. 32.)1
Having outlined the misconduct, the board next considered petitioner’s present competence and legal abilities. The record establishes that petitioner has been unemployed since September 1997, and between his November 1995 transfer to inactive status and his April 1998 reinstatement hearings, petitioner had difficulty sustaining employment. (N.T. 4/3/98 p. 78.) He did, however, work in the summer of 1997 as a document reviewer for the [F]. Prior to petitioner’s transfer to inactive status and his suspension, he held a number of different positions, including telemarketer, road service counselor, legal assistant, document reviewer and researcher, and general counsel to a Pennsylvania company and a Florida corporation. Petitioner’s tenure at these positions was short.
During his suspension, petitioner filed two pro se lawsuits. One case was filed against [C] Inc. and [D] Insurance as a result of a Florida accident which injured petitioner. The other matter was filed against the Disciplinary Board of the Supreme Court and the Continuing Legal Education Board, challenging the requirement that he fulfill his CLE credits and pay the costs of his prosecution
Office of Disciplinary Counsel presented evidence that at the time he filed the personal injury suit, he knew it was time-barred by the two-year Pennsylvania statute of limitations. When questioned as to his motives, petitioner testified that he thought his case had merit since he argued the unconstitutionality of the Pennsylvania borrowing statute; if successful in that argument, the court would have applied the four-year Florida statute of limitations and not the two-year Pennsylvania statute. Interestingly, he testified he might not have filed the suit if he were acting as the attorney in the matter, and not the pro se plaintiff. (N.T. 4/3/98 pp. 44, 88-89.) He testified he was desperate and hoped he could obtain a settlement: “I had to somehow get money together to pay for my disciplinary bills.” He persisted in this desperation by appealing the dismissal of the federal action to the United States Court of Appeals for the Third Circuit and when that was unsuccessful, he filed a writ of certiorari to the United States Supreme Court. Office of Disciplinary Counsel offered the suit against the Disciplinary Board and the CLE Board as evidence of petitioner’s competence and learning in the law; it also reflects on his judgment and character.
Petitioner testified that in order to maintain his learning in the law and competence, he took 37 CLE course credits and has regularly read the [ ] and other legal treatises. (N.T. 4/3/98 pp. 49-50.) The evidence above is not sufficient to sustain petitioner’s burden under Rule 218(c)(3)(i).
The next issue for the board on a reinstatement petition is to determine whether by clear and convincing evidence the petitioner met the burden of proving moral fitness. Typically, this is done through the presentation of favorable character testimony, but the testimony of this petitioner’s two character witnesses is hardly compelling. In re Anonymous No. 90 D.B. 85, 17 D.&C.4th 548 (1992); In re Anonymous No. 45 D.B. 84, 15 D.&C.4th 321 (1992). Although Attorney [B] testified that petitioner’s reputation was as an honest and truthful individual and he never heard negative things about him, such reputation evidence carries little weight in light of the fact that the witness did not know of petitioner’s suspension and the reasons for it until shortly before the reinstatement hearing. Petitioner did not sustain his burden of proof by clear and convincing evidence that he is morally qualified to practice law in Pennsylvania.
“Basically I uphold virtues of truth and justice and responsibility . . .I’ve learned from my mistake ... It was an aberration, but I have suffered. This has been hanging over my head for six years... I basically accept responsibility and [want to] be able to move forward professionally and financially so that I can become a productive citizen and the good lawyer that I am.”
While the board is impressed with petitioner’s testimony, it does not meet his burden of proof required by 218(c)(3)(i).
The board finds that petitioner did not meet his burden of proof by clear and convincing evidence that he is morally qualified, competent and learned in the law. The board recommends that petitioner’s petition for reinstatement be denied.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, [ ], be denied reinstatement to the practice of law.
Board Members Marroletti and Nix dissented.
Board Member Caroselli did not participate in the consideration and disposition of this matter.
Board Member Schultz did not participate in the October 5, 1998 adjudication.
1.
This testimony is especially positive in light of the initial Hearing Committee report and recommendation which reported his testimony was “he had no recollection of having been arrested when he filled out his application for the Pennsylvania Bar and that he was in a *158very rushed state because he was in the middle of exams.” The Hearing Committee concluded petitioner was “not candid” before this panel “and believed his testimony to be ludicrous and not truthful.” Report of Hearing Committee no. 1.02 filed 1/26/95, p. 6.