In Re Birmingham

866 P.2d 1150, 110 Nev. 70, 1994 Nev. LEXIS 10

• Court: Nevada Supreme Court
• Decided: January 21, 1994
• Docket: 23231
• Status: Published

Opinions

OPINION

By the Court,

Springer, J.:

Petitioner Birmingham is a pilot and in 1983 he admittedly was involved in a scheme to smuggle marijuana into this country from South America. He voluntarily withdrew from this illicit activity and entered law school. While he was in law school, his past caught up with him, and he was arrested by federal officials. He pleaded guilty to a federal charge of conspiracy to distribute marijuana and was sent to prison. Because of his cooperation with law enforcement, he was placed on early parole in February of 1989. While on parole, Birmingham returned to law school and was able to graduate in May of 1990, whereupon he took the Nevada Bar Examination and passed it.

Birmingham was discharged from parole on March 12, 1991. After hearings conducted in May of 1991 and July of 1991, the State Board of Bar Examiners recommended to this court that we admit him to the practice of law. On October 25, 1991, in a written order, this court refused to accept the Board’s recommendation for Birmingham’s admission and questioned the Board’s conclusion that Birmingham possessed the “suitable moral character” that would qualify him to be numbered among those licensed to practice law in this state. We did, however, at the same time, also conclude that, in the light of Birmingham’s commendable efforts to overcome past mistakes, we would accord serious future consideration to an appropriately documented petition for a waiver of SCR 67(2).¹

Having reviewed the instant petition and the record on file before this court, the members of this court have all concluded that Birmingham has at this time clearly and convincingly demonstrated full and complete rehabilitation. See In re Belsher, 689 P.2d 1078, 1083 (Wash. 1984) (prior criminal conduct adds to applicant’s burden by requiring convincing proof of full and complete rehabilitation). As the Dissenting Opinion notes, none of the members of this court are any longer worried about whether Birmingham is of “suitable moral character.” No one, including the dissenting justices, questions Birmingham’s suitability to be a lawyer or considers him to be a “threat to the public in the form of unethical or criminal behavior.” Justices Steffen and Rose dissent “solely upon the ground that Birmingham’s admission will discretely add to a significant and enduring increase in public distrust of the legal profession.”

We understand how it is that Justices Rose and Steffen might consider Birmingham’s conspiracy to distribute marijuana to be so “extremely serious” as to disqualify him forever from practicing law and understand their belief that to admit him to practice law would “permit further erosion of public respect for the profession.” This is their own, personal moral judgment, and they are certainly entitled to make this stern judgment. In light, however, of the two dissenting justices’ frank recognition of “Mr. Birmingham’s many positive accomplishments since the commission of his criminal offenses,” “the number and magnitude of his achievements,” their “express confidence in Mr. Birmingham’s rehabilitation” and, perhaps most significantly, Justice Steffen’s and Chief Justice Rose’s “belie[fj that he will distinguish himself in the practice of law,” we, in the majority, believe that the Board’s position is more reasonable than theirs and that Birmingham’s isolated dereliction, ten years ago, should not brand him forever. Birmingham is not a serial killer or a predator on the estates of aged widows. When he was a young man he improvidently tried to “make a quick buck,” even, perhaps, as Justices Steffen and Rose maintain, at the expense of marijuana “victims” who “have suffered and will suffer, at least in part, from Birmingham’s crimes.” (Steffen-Rose Dissent at 3.) None in the Majority, in any sense, minimizes the seriousness of conviction of a federal offense of conspiracy to distribute marijuana, but this does not mean that we have to reject the Board’s recommendation of approval, based entirely on this past conviction.

The Board, having given hours, even days, to this matter in the form of investigations and hearings, is in a better position than we are to pass judgment on the question of whether admitting Mr. Birmingham to practice law is so destructive of “Public confidence in the bar as a whole” as to require denying him membership in the Bar. Although we respect the right of Chief Justice Rose and Justice Steffen to be particularly strict when it comes to drug conspirators, we hold that there is insufficient reason in this case to reject the Board’s favorable recommendation and to exclude Mr. Birmingham solely upon the ground of his past conviction and the dissenting Justices’ perceptions that his admission would substantially diminish “public confidence in the bar as a whole.”

We grant Mr. Birmingham’s petition; and we direct the State Bar of Nevada to admit Mark K. Birmingham to the practice of law in this state upon his compliance with any heretofore unsatisfied requirements for admission.

Young and Shearing, JJ., concur.

1 SCR 67(2) provides that an applicant who has been once denied admission for failure to meet the necessary character requirements shall not thereafter be permitted to apply for admission.