In Re Smith

270 S.E.2d 768, 585 S.E.2d 602, 214 W. Va. 83, 1980 W. Va. LEXIS 614

Opinions

NEELY, Chief Justice.

This is a petition by a disbarred attorney for reinstatement of his license to practice law, pursuant to Art. VI, § 35 of the ByLaws, West Virginia State Bar.1 The license of the petitioner, W. Bernard Smith, was annulled by this Court on SO July 1974, In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974), after his conviction on 13 December 1971 in the United States District Court for the Southern District of West Virginia for conspiring to cause fraudulent and illegal votes to be cast in a primary election in Logan County contrary to the provisions of Title 18 U.S.C. § 241. This conviction was appealed to the United States Court of Appeals for the Fourth Circuit where it was affirmed and to the United States Supreme Court where it was also affirmed, Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20, (1974) with Justices Douglas and Brennan dissenting.

On 15 July 1974 the petitioner was incarcerated in the Federal Penitentiary at Lewis-burg, Pennsylvania, to be returned to the Court after a 90 day period of study with a report and recommendation under the provisions of Title 18, U.S.C. 4208(b). When he was returned to the Court the original maximum sentence was set aside and he was fined $5,000 and sentenced to 179 days of incareer- ation with credit for time previously served, and five years probation. One condition of his probation was public service without compensation, and in fulfillment of that requirement, the petitioner. moved to Fairmont, West Virginia where he participated in the Senior Aides program for a year.

On 14 September 1979, more than five years after the annulment of petitioner’s license, his petition for reinstatement was filed and on 22 April 1980, a three-man subcommittee of the Committee on Legal Ethics of the West Virginia State Bar held an eviden-tiary hearing on the petition and on 1 July 1980 recommended that the petition for reinstatement be denied. Petitioner then filed his request for our review and reinstatement. The original opinion in this case reinstating petitioner was filed by this Court on 7 October 1980 and on 5 November 1980 the Ethics Committee filed a petition for rehearing, pointing out to the Court that it had incorrectly stated certain principles of law. Upon consideration of the Committee’s petition for rehearing the Court concluded that parts of the majority opinion misstated the law, whereupon on the Court’s own motion the original opinion was withdrawn and this opinion is substituted in its place. Since the relief for which petitioner prayed is granted, thus causing no prejudice to the petitioner, and since the Committee showed no grounds in its petition which would change the final result in this ease, the Court denied the rehearing.

I

Recently this Court spoke to the entire issue of reinstatement in the case of In re Bonn Brown, 164 W.Va. 234, 262 S.E.2d 444 (1980) in which we cited with approval In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975) where the Massachusetts Court set forth the broad categories of considerations to which a court should look befoi’e reinstating an attorney. We quoted the Massachusetts Court as follows:

In judging whether a petitioner satisfies these standards and has demonstrated the requisite rehabilitation since disbarment, it is necessary to look to (1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner’s character, maturity, and experience at the time of his disbarment, (3) the petitioner’s occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner’s present competence in legal skills. (Citations omitted.) 164 W.Va. 234, 262 S.E.2d 444 at 446 (1980).

The Committee on Legal Ethics takes the position that the petitioner was convicted of a crime which in and of itself justifies denial of reinstatement to practice law. While the Committee does not argue that the petitioner’s license should never be reinstated, they object to reinstatement at this time because of lack of affirmative evidence of rehabilitation. The Committee argues that the petitioner’s offense was reprehensible and that the petitioner has not engaged in any affirmative acts which could be called rehabilitation since his disbarment, although the Committee points to no blemishes upon the petitioner’s record since his conviction in 1971.

The Committee notes that since his release from confinement and required public service work in the Senior Aides Program in Fair-mont, the petitioner has not participated in any civic, community, or religious undertakings which, according to the Committee’s argument, would demonstrate rehabilitation. Furthermore, the Committee points to the fact that the petitioner, while earning occasional consulting fees, has primarily relied for his living upon his private resources. The Committee implies that failure to have steady employment at a regular salary in some way easts aspersions upon the character of the petitioner, although they readily admit that the petitioner’s private resources were sufficient to sustain him without reliance upon anyone else.

The Committee has long been in favor of permanent disbarment of attorneys. However, this Court has rejected the concept of permanent disbarment at least since the ease of In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970) where it was decided before the adoption of the present rule, Art. VI, § 35, that annulment of a license to practice law does not prohibit an application by a dis barred attorney for a new license as if the former license had never been issued.

In 1971, after our decision in Daniel, supra, the State Bar proposed amendments to its By-Laws including a provision for permanent annulment of the license of an attorney upon disbarment. See West Virginia State Bar News. Dec. 1971, at 5. By order entered in the Sup.Ct. Order Book No. 71, at 500, on 7 December 1971 this Court approved all of the suggested amendments except the one providing for permanent annulment of a license to practice. A year later, on 12 December 1972, acting on a petition by the State Bar which resulted from action taken by the Bar at its regular annual meeting held 12 October 1972, this Court entered an order approving an amendment to the By-Laws adopting the present rule providing for petitions for reinstatement after the expiration of five years from the date of disbarment.

It should be obvious from a history of Art. VI, § 35 that the Court in recent years has considered it disproportionate punishment to deny an attorney the right to practice law indefinitely. As this Court said in the case of State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318, at 329-30 (1977) in a different but related context:

At the outset this Court acknowledges that the cruel and unusual punishment standard cannot easily be defined and certainly is not fixed; consequently, we feel the standard tends to broaden as society becomes more enlightened and humane ....

A good starting point for applying the cruel and unusual punishment standard ... is the concept of disproportionality. This concept is explicitly recognized in W. Va. Const., art. III. § 5, “Penalties shall be proportioned to the character and degree of the offence” and is implicit in the Eighth Amendment to the United States Constitution, which originates in the same tradition as our own constitutional provision.

While the Bar maintains that the permanent annulment of the license of an attorney who is guilty of a crime of moral turpitude is primarily for the purpose of protecting society from unscrupulous lawyers, nonetheless, in eases such as the one before us there is little justification for denying reinstatement other than to heap additional punishment upon the offending attorney. In the case before us the offense was not related to the practice of law so that the offense itself, while serious, does not raise the specter of future injury to the public through reinstatement of petitioner’s license. In general this Court has rejected vengence as a civilized instinct. See State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980).

The five year rule is consistent with other decisions of this Court regarding restoration of rights after an individual has been convicted of a crime and served his sentence. The petitioner for example is not disqualified as a voter, Osborne v. Kanawha County Court, 68 W.Va. 189, 69 S.E. 470 (1910); he is not disqualified from holding public office, Webb v. County Court, 113 W.Va. 474, 168 S.E. 760 (1933); nor is he prohibited from seeking and holding a seat in the West Virginia Legislature, Isaacs v. Ballot Comrs., 122 W.Va. 703, 12 S.E.2d 510 (1940).

II

The petitioner was born in Logan, West Virginia in 1930. He graduated from Marshall University in 1952 and the Washington and Lee School of Law in 1956 where he was a member of the Law Review. He was admitted to practice in 1956 and immediately went to work for the State Tax Department where he served for six months and then became an Assistant Attorney General for the State of West Virginia until 1961. At that time he was appointed State Director of the Department of Public Assistance, commonly called the Department of Welfare. He served as Commissioner of Welfare from 1961 to 1965 and from that time until his disbarment he practiced law in Logan County, West Virginia, during which time he served as Assistant Prosecuting Attorney for approximately one year. Petitioner was elected to the West Virginia State Senate in 1968 and served in that capacity until 1972 when he was removed as the result of the conviction in Federal Court.

While petitioner’s ease was on appeal to the United States Court of Appeals for the Fourth Circuit and then to the United States Supreme Court he continued to practice law in Logan County. Although his conviction was widely publicized and generally known, he had a substantial practice at the time of his disbarment. When his disbarment became imminent he met with the Judge of the Circuit Court of Logan County and went over a list of all the cases which he had pending and made arrangements with all of his clients for substitute counsel in all cases in which he was involved and arranged to pay his secretary in his law office to keep his office open for thirty days after his incarceration to assist his clients and substitute counsel in making an orderly transition.

The Honorable Naaman J. Aldredge, Chief Judge of the Seventh Judicial Circuit, testified that petitioner was “well recognized in the local community as being a tough, aggressive, competent lawyer, especially in the criminal field.” When asked whether he felt the administration of justice in Logan County would suffer if petitioner’s request for readmission were granted, he stated: “It’s my opinion that Bernard would be a useful member of the legal community in Logan County.” Robert M. Harvey, former law clerk for State Supreme Court Justices Frank Hay-mond and Charles Haden, currently practicing law in Dunbar, West Virginia, testified that although he was not a friend of petitioner, he had observed his appearances, briefs and arguments before this Court and had discussed matters of legal theory with him on occasion. When asked to describe his ability as an attorney before the Supreme Court of Appeals, Mr. Harvey stated: “I would say— on a scale of 1 through 10, I would say he would be a 10 class lawyer. I’d say he was in the top practitioners before the Court as far as his preparation of his pleadings and his research and I think his presentation.”

While there is testimony in the record that the petitioner is generally of low moral character by virtue of his previous political activities, the record is absolutely devoid of any testimony whatsoever that petitioner ever inadequately represented a client or failed to perform not only as a competent lawyer, but indeed as one of the superior lawyers in West Virginia. To the extent that there is testimony in the record that the petitioner is in general a bad human being, there is equally persuasive testimony that the petitioner’s moral character is quite acceptable. This Court has recognized in Committee on Legal Ethics v. Pence, 216 S.E.2d 236 (W.Va.1975) that little weight can be attributed to affidavits attesting to good moral character and integrity; alternatively, very little weight can be attributed to general assertions of bad moral character.

The record before us presents no specific facts which would lead a reasonable person to conclude that the petitioner is of bad character. While a number of witnesses testified that they would not trust the petitioner, they alluded to no underlying circumstances which prompted their conclusions. Certainly the general assertions of bad character were more than off-set by general assertions of good character from practicing lawyers and judges. The Court recognizes the inherently obvious, namely that any successful professional person will have both friends and enemies no matter how heinous his crime, nor exemplary his life; accordingly, in order for allegations of bad character to have any weight they must be tied to specific instances of reprehensible conduct which would lead an impartial observer to conclude that a petitioner is of bad character.

Where, as in the ease before us, the petitioner shows a record of honorable behavior since disbarment the petitioner’s burden has been met with regard to those factors which are within his immediate control and the burden is then upon the Committee on Legal Ethics, if they wish to contest reinstatement, to present concrete facts and circumstances which would lead to an inference of bad character or lack of fitness to practice law. There are obviously occasions where the underlying offense which caused the loss of a license is so serious that the Court cannot be confident that the petitioner is sufficiently rehabilitated that the public will be adequately protected. This is particularly the case where the underlying offense was directly related to the practice of law.

The Ethics Committee argues in essence that in order for the petitioner to meet the burden of rehabilitation he must, for all intents and purposes, “live at the foot of the cross” and do constant acts of penance. If the affirmative burden of proof regarding rehabilitation were as heavy as the Committee urges, their proposed rule of evidence would accomplish indirectly what this Court has declined to do directly, namely make reinstatement impossible. Nonetheless, it is unavoidable that there will be cases where the original transgression is so threatening to the integrity of the entire legal system that no brief period of even the most exemplary conduct can provide satisfactory assurance to the Court that the public will be adequately protected. That, however, is not the situation in the case'before us.

Ill

If we now look to the five objective criteria set forth in Hiss and Brown, supra for determining whether a disbarred attorney should be reinstated, we find that the petitioner is entitled to reinstatement. The nature of the original offense for which the petitioner was disbarred was reprehensible, but it was completely unrelated to the petitioner’s law practice or activities as an officer of the Court. The petitioner’s character, maturity, and experience at the time of his disbarment certainly do not militate in favor of petitioner’s reinstatement, but at the same time, they do not militate against reinstatement. The criteria of character, maturity, and experience are basically designed to permit forgiveness of a young man who has been stupid in his youth and can demonstrate that over the course of years he has become wiser and stronger. That may very well have been the case in In re Hiss, supra. These criteria then can only be interpreted positively in those cases where they are applicable and should be ignored in a case like this where there has been no significant change in maturity and experience since the time of disbarment.

The petitioner’s occupations and conduct in the time since his disbarment have been entirely honorable. While the Ethics Committee point to the petitioner’s lack of regular salaried employment since his disbarment, we find his occupation since disbarment acceptable in light of his participation in his own business, his regular consulting services, and the fact that his private assets were sufficient to provide for his family. The time elapsed since disbarment is over one year longer than that required by our Rules. Finally, there is absolutely no evidence in the record to indicate that petitioner’s present competence in legal skills is anything less than superior. The record demonstrates conclusively that during the petitioner’s period of disbarment he has actively read in the law and kept himself abreast of all current developments, and that he maintains a keen interest in developing case law and the legal literature in general.

IV

The rule permitting reinstatement after five years is a rule of compassion. As this Court said in Webb v. County Court, 113 W.Va. 474, 168 S.E. 760, 761 (1933):

It is the anxious desire of the state that those of her citizens who have transgressed her laws, suffered convictions, and paid the penalty of the law, shall profit from their unfortunate experience and thereafter make of themselves good citizens by leading lives of uprightness and usefulness. (Cited with approval Isaacs v. Ballot Comrs., supra).

Except in those eases where the Court must conclude that the petitioner’s original transgression alone was so serious that even exemplary subsequent conduct cannot provide adequate assurance that the public’s interest will be protected or a factual showing by the Committee on Legal Ethics that petitioner’s current conduct or character is unacceptable to the extent that it will endanger the public, an attorney’s license to practice will be reinstated after five years of good behavior after disbarment.

Accordingly, for the reasons assigned above the petitioner’s application for reinstatement to the West Virginia State Bar as a licensed, practicing attorney is granted.

Application for reinstatement granted.

Footnotes

1

. The applicable part of the By-Laws, § 35, reads as follows:

The annulment of a license to practice law by any court of competent jurisdiction shall revoke and terminate such license, and shall constitute a disbarment; provided, however, after the expiration of five (5) years from the date of such disbarment, a person, whose license to practice law has been or shall be annulled in this State and who shall desire reinstatement of such license, may file a verified petition in the supreme court of appeals of West Virginia reciting the court which annulled such license, the cause of such annulment and what he shall have done in satisfaction of requirements as to rehabilitation, restitution, conditions or other acts incident thereto, by reason of which he believes he should be reinstated as a member of the state bar and his license to practice law be restored to him.