IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 12764
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IN THE MATTER OF
JOHN L. McKEON
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OPINION AND ORDER . 3 >
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The matter of the petition of John L. McKeon for reinstate-
ment to the bar of the State of Montana comes before this
Court under Rule X , of the Commission on Practice of the
Supreme Court of the State of Montana (Order in cause no.
10910, establishing the Commission on Practice, January 1,
1965, effective April 1, 1965).
John L. McKeon was disbarred by this Court on ?day 13,
1974. In the Matter of John L. McKeon (1974), 164 Plont. 328,
521 P.2d 1307. His disbarment followed his conviction for
crimes through a plea bargaining process in which petitioner
pleaded guilty to four separate felonies, which included (1)
offering false evidence, (2) obtaining money by false pretense,
(3) grand larceny by bailee, and (4) forgery. Petitioner
was sentenced to five years imprisonment on each count with
the last three years of each sentence suspended, the sentences
to run concurrently. As a condition of sentence and parole,
petitioner agreed to make restitution of funds to individual
clients and to the Workers' Compensation Division of the
Department of Labor and Industry of the State of Montana.
The petitioner has fully served his prison time and has
returned to reside in Anaconda, Montana. The findings of the
Commission reflect that he has made restitution payments
on schedule and that there still remains a balance to be
repaid to discharge his restitution obligations in full.
Notice of the hearing of the application by the petitioner
for the reinstatement was sent to the Attorney General of
the State of Montana, the United States Attorney, the County
Attorney of Deer Lo2ge County, the president of the ?lantana Bar
Association, and all members of the Third Judicial District
of the Montana Bar Association. The notice provided that
any and all persons desiring to appear and to be heard
in support of or in opposition to the petition should attend
and participate in the proceedings. The Commission found
that the secretary of the Commission had received over 20
letters in support of petitioner's application and had
received none in opposition thereto. No person had requested
an opportunity to appear at the hearing in opposition to the
application. Supporting petitions were signed by 48 lawyers
as were petitions containing approximately 500 signatures of
residents of the city of Anaconda. Following the hearing before
the Commission on the petition for reinstatement, the secretary
of the Commission received an additional 18 letters in
support of the application and one in opposition thereto.
The opposing letter stated the opinion that anyone convicted
of felony should be denied reinstatement.
Prior to the hearing, the Commission on Practice had
hired special counsel to investigate on behalf of the Commission,
and to determine if there was any evidence that would indicate
that the application should be denied. The only adverse
reaction reported by the special counsel was from a lumber
yard owner in Anaconda who was a former county commissioner.
He opposed the application for reinstatement on the grounds
that the crimes for which petitioner was convicted were so
severe that he should never be allowed to practice. His
opposition was not based on any facts occurring subsequent
to the time of the disbarment.
The Commission found a uniform consistency among the
affidavits, letters and sworn testimony that petitioner
sincerely regrets his transgressions, that he did not turn
to the use of alcohol or drugs following his conviction,that he
did not indulge in self pity, but devoted the last 8 years
of his life to assisting the young and the aged. The Commission
found him to be a compassionate friend and neighbor. The
Commission also found that the petitioner himself was a
convincing witness on his own behalf, acknowledging his
crime, stating that he was ashamed of it, that he held no
resentment for the fact that he was prosecuted and required
to go to prison, that he knew he had done wrong, and that he
carried no hostility arising out of his convictions and
subsequent disbarment. The Commission further found:
"Accordingly, from the evidence presented at the
hearing and otherwise made known to the Commission,
the applicant does appear to have rehabilitated himself
and since his release from prison led a contrite and
productive life. Notwithstanding this proof, the
Commission has serious reservations whether the
format prescribed for reinstatement which is a
curious mixture of public and confidential proceedings
will ever bring forth any substantial opposition
evidence if it exists. Further, it occurs to us that
there is no adequate way for the Commission or the
court truly determining the applicant's present ethics
and morality. Proof in the form of testimony of
friends and supporters of the applicant is not
altogether objective evidence. The Commission believes
that the best indicator of the applicant's moral
propensities lies in the nature and circumstances
of the deeds which brought about his disbarment. ..
"Mr. McKeon's admitted crimes were a series of
separate calculated felonies, corrmitted over a long
period of time, the victims of which were persons
or agencies with whom he developed a trust. There is
no indication of alcoholism, family need, or other
ameliorating circumstance which claimed Mr. McKeon's
criminal acts . . .
"In view of the gravity of the admitted crimes and
accumulative moral turpitude of McKeon's crimes,
the Corunission determines that there is insufficient
proof that the applicant now possesses a high degree
of moral and ethical standaurds which are necessary
to practice law in Montana.
Seven members of the Commission signed the majority report
denying petitioner's application recommending that the application
for reinstatement be denied. These included the three
lay members who represent the public on the Commission. Three
lawyer members of the Commission on Practice filed a minority report
in favor of petitioner's reinstatement.
Other arguments against reinstatement raised by the majority
report include the effect upon the public, the majority being
of the opinion that because of the notoriety and gravity of
McKeon's felony convictions and imprisonment, reinstatement
would not be in the best interests of the law profession in
the state; that if he were applying for the first time as a
layman for admission at the University of Montana Law School,
he would undoubtedly be denied; and that section 37-61-309,
MCA, requires mandatorily that a lawyer convicted of a felony
be stricken from the roll of attorneys; that there is an
implication from the statute that the conviction of a crime
involving moral turpitude mandates permanent deprivation of
the right to practice.
Members of the Commission signing the minority report contend
that the adoption of a rule that persons convicted of felonies
must never again be admitted to practice is harsh and unnecessary;
that there has been no public outcry raised against his rein-
statement in the area where petitioner is known and resides;
and that since his conviction and imprisonment, he has shown
himself not to be a repeat offender. The minority concludes
that based on the record before the Commission, the evidence
of petitioner's rehabilitation is so commanding that his
reinstatement is required.
We hold that on the record in this case before the
Commission, petitioner McKeon should be granted reinstatement
to the Bar of the State of Montana. In so holding we run
contra to the opinion of seven members of the ten member
Commission on Practice. Out of deference to all of the
members of the Commission who hold their positions either
by appointment by this Court, or by election by their lawyer-
peers, we will attempt to explain our reasons for so holding.
The first issue that we examine is the tenet that an
attorney, once convicted of a felony, must thereafter be
permanently W a r r e d from practicing in the courts of this
State. The Commission majority, though noting that this
tenet was not essential to their conclusion, nonetheless
found a strong implication in the provisions of section 37-
61-309, MCA, upon which to found the tenet. That section
provides that upon conviction of a felony the judgment of
the Supreme Court must be that the name of the party be
stricken from the roll of attorneys, whereas in conviction
for cases less than a felony, or for misdemeanor not involving
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moral turpitude, the judgment of the court may be, according
to the gravity offense, or charge, deprivation of the right
to practice "permanently or for a limited period."
First, the making of rules governing the conduct of the
members of the Bar is particularly within the province of
the Supreme Court. Art. VII, 5 2, 1972 Mont. Const. The
power of the courts generally to control the admission and
readmission of lawyers to practice is recognized in section
6.2 of the American Bar Association Standards for Lawyer
Disciplinary and Disability Proceedings:
"6.2 Disbarment. Readmission. The court has
exclusive power to readmit a disbarred lawyer.
"The lawyer should not be able to apply for
readmission until at least 5 years after the
effective date of disbarment and should not
be readmitted unless he can show by clear
convincing evidence: rehabilitation, fitness
to practice, competence, and compliance with
all applicable discipline or disability orders
and rules."
Second, the legislature has not shown permanent punishment
as its desideratum in its general statutes respecting convictions
for crimes:
"46-18-801. Effect of conviction -- civil
disabilities. (1) Conviction of any offense
shall not deprive the offender of any civil
or constitutional rights except as they shall
be specifically enumerated by the sentencing
judge as necessary conditions of the sentence
directed toward the objectives of rehabilitation
and the protection of society.
" ( 2 ) No person shall suffer any civil or
constitutional disability not specifically
included by the sentencing judge in his order
of sentence.
" ( 3 ) When a person has been deprived of any
of his civil or constitutional rights by reason
of conviction for an offense and his sentence has
expired or he has been pardoned, he shall be
restored to all civil rights and full citizenship,
the same as if such conviction had not occurred."
Third, we have in the past restored to practice attorneys
who had been disbarred for conviction of felony, or under
circumstances amounting to the commission of a felony. We
omit citations to these instances out of respect for the
individuals involved.
Fourth, we decline in principLe to adopt a position
that permanent disbarment is just retribution for a felony
conviction. In the deepest well-springs of our beings,
expressed in nearly every religious persuasion, is the
precept that man, though weak in nature, can nonetheless
reform. To deny that humans, even lawyers, are capable of
reform is to scant the qualities of memory, understanding
and will which distinguish us from other vertebrates.
The second issue to be examined is whether it does
irreparable damage to the Bar from the viewpoint of public
acceptance, to readmit a person convicted of felony to
practice law. It must be admitted that here the majority
members of the Commission may have a point, though we doubt
that the damage is irreparable. Undoubtedly there is a good
deal of skepticism in the public at large when we do readmit
a lawyer who has been convicted of a felony. Offsetting
that is the relatively good experience we have had in those
cases where readmission has been granted.
Having determined that conviction of the felony should
not ipso facto make disbarment permanent, and that we have
been willing to risk public skepticism in earlier cases, we
move now to the third issue, whether on the record, petitioner
McKeon has shown by clear and convincing evidence that he is
rehabilitated, and that this Court should risk, and cause
his future clients to risk, the quality of his reform. The
majority members of the Commission agree that petitioner
"does appear to have rehabilitated himself and since his
release from prison led a contrite and productive life."
The majority members, however, backed away from the conclusion
that he is rehabilitated because of the cunulative nature of
his earlier crimes, which they feel indicate moral propensities,
the cure of which no proof is pcssible.
This Court agrees that the petitioner does aFpear to
have been rehabilitated, and from the record can deduce no
risk that petitioner has deluded us about his reform. If
the evidence here does not support rehabilitation, there
will be little chance for any future disbarred attorney to
establish reform. It is difficult also for us to close our
eyes to the other facets of petitioner's career and demonstrations
of his ability which have resulted in immense service to the
public. He is an honorably discharged veteran who served in
the Armed F G ~ C ~ S World War 11, having voluntarily enlisted
in
in those forces at age 17 after graduating from high school.
He was disabled in the war, and attended the University of
Montana, by virtue of the provisions of the Disabled Veterans
Act. Throughout his career he was active in veterans affairs,
has held offices in veterans organizations, and even since
his disbarment, has actively counseled veterans of all wars
including the Vietnam conflict, on their rights as veterans,
and he has lent assistance in many problem they have had in
connection with their veterans rights, all without charge
for his services. While he was a lawyer, he held numerous
public positions, including stints as an assistant attorney
general for the State of Moritana, as Deer Lodge County
Attorney, as a member of the school board of trustees, and
as state Senator for 14 years, where he represented at
various times the Counties of Deer Lodge, Powell, Granite
and portions of the County of Missoula.
Since his disbarment he has lived in the co~~munity
of
Anaconda. He chose to return after his conviction to his home
among the people he had known, and despite the shame of his
criminal convictions. He has had difficulty providing for
himself and his family since his disbarment and has survived
by using his assets for living expenses in addition to
making substantial payments on the obligations he assumed
for restitution. He testified at the hearing that he has
continued the study of law by reading the decisions of this
Court and the Session Laws of the State of Montana and has
read extensively in legal periodicals, law reviews, and
issues of legal texts as new volur,es were published. He has
assisted the youth and elderly in his community; he has
volunteered his time to the recreation department of Anaconda-
Deer Lodge County, and has coached basketball teams composed
of eighth grade students, for all of which he has received
no compensation. He has particularly interested himself in
the problems of aged, has been active in the Montana Legacy
Legislature, and has helped senior citizens in lobbying
efforts. He has busied himself in other public interest
pursuits.
In deciding to restore him to the practice of law, we
are placing upon him a burden common to all restored lawyers,
but particularly emphasized in his case. He must now demonstrate
to the public, to the members of the Practice Commission,
and particularly to this Court that his reform is genuine,
and that our trust is not misplaced.
We are placing no conditions upon his readmission. He
is subject to the requirements of continuing legal education
that now apply to all lawyers practicing in this state. His
duty of restitution is contractual, and is a matter between
him and the other parties to the contract. We repeat the
language of the California court in Resner v. State Bar of
California (1967), 433 P.2d 748, wherein that Court said:
"There can, of course, be no absolute guarantee that
the petitioner will never engage in misconduct again.
But if such a guarantee were required for reinstatement
none could qualify. All that we can require is a
showing of rehabilitation and of present moral fitness.
A reading of the entire record indicates that Resner
has convincingly established his rehabilitation and
moral fitness by his own statements and those of
many attorneys on his behalf. Rehabilitation is, of
course, a 'state of mind.' The law looks with favor
upGn the regeneration of erring attorneys and should
not place unnecessary burdens upon them. (Citing
cases.) Tested by these standards petitioner has
met the burden placed upon him. He should be
reinstated." 433 P.2d at 755, 756.
WHEREFORE, IT IS ORDERED:
That the petitioner John L. McKeon at a suitable time be
and appear before the clerk of this Court, then and there
to take and file the oath required of attorneys for admission
to the Bar, and that thereupon the clerk of this Court add the
name of John L. McKeon to the list of attorneys authorized
to practice law in the courts of this State; and that those
courts which have been notified by the clerk of this Court
of his disbarment be then notified of his readmission to
practice.
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DATED this i/'day of December, 1982.
We Concur:
Chief Justice
Mr. Chlef Justice Frank I. Haswell, concurring and dissent-
ing :
I would reinstats petitioner for the reasons stated by
the majority, but I would impose conditions for the protec-
tion of the public.
First, I would require petitioner to pass a bar
examination. Petitioner has not practiced law for more than
eight years. Section 6.2 of the American Bar Association
Standards for Lawyer Disciplinary and Disability Proceedings
provides in pertinent part:
"The lawyer . . .
should not be readmit-
ted unless he can show by clear convinc-
ing evidence: rehabilitation, fitness to
practice, competence, and compliance with
all applicable discipline or disability -
orders-and rules. " (Emphasis mine. )
What better way exists to prove present competence to
practice law by clear and convincing evidence than to
successfully pass a bar examination?
The fact that petitioner was presumptively competent
to practice law at the time of his disbarment in 1974 does
not constitute clear and convincing evidence that he is
still competent after an eight-year layoff in my view. Nor
are the requirements of continuing legal eaucation which are
imposed upon all attorneys designed to provide a substitute
for a comprehensive bar examination.
Petitioner testified at tne hearing on his petition
for reinstatement that he has continued the study of law by
reading the decisions of this Court, the Session Laws of the
Montana Legislature, and has read extensively in legal peri-
odicals, law revlews and issues of legal texts as they were
published. What better way exists to evaluate the effec-
tiveness of petitioner's self-study program than for him to
take a bar examination?
Secondly, I would require petitioner to successfully
pass the Montana Professional Responsibility Examination.
This examination tests the examinee's knowledge of ethical
standards demanded of attorneys, their obligations and
responsibilities. Petitioner has never taKen this test as
it has only recently been instituted. As the causes of
petitloner's disbarment directly relate to his breach of
these standards, obligations and responsibilities, peti-
tioner should be required to successfully pass this
examination.
Finally, I would require that petitioner's reinstate-
ment be made expressly conditional on the continued per-
formance of hls contract obligation to make restitution to
various clients of his and to the Workmen's Compensation
Divislon as requested by the Attorney Generai. This wrltten
restitution agreement dated September 30, 1974, between
petitioner and the Workmen's Compensation Division w a s
approved by the then Attorney General, Robert L. Woodahl,
and District Judge Peter G. Meloy. As of January 6 , 1982, a
balance of $26,015.62 remained owing by petitioner. Payment
in full plus accrueu interest is due by September 10, 1984.
I am not comfortable with readmitting petitioner to
tne pracclce of law free of these conditions. Surely, we
owe the public in whose midst petitioner will practice these
minimum safeguards.
Q 4 4 ,pU&
4
Chief Justice