In re the Disciplinary Proceeding Against Moynihan

778 P.2d 521, 113 Wash. 2d 219, 1989 Wash. LEXIS 101
Washington Supreme Court·Decided September 7, 1989·No. No. 5441·Published·Cited by 3 cases

Opinion

Dore, J.

Joseph T. Moynihan was disbarred by this court in 1982 for misappropriation of client funds. He petitions for reinstatement.

Facts

Moynihan was admitted to the Washington State Bar (Bar) in 1973, and engaged in general practice until 1980. At this time, petitioner withdrew from the practice of law. In 1981, Moynihan was suspended from the practice of law for nonpayment of dues. In 1982, he was ordered disbarred for neglect of client matters, misappropriating client funds and failure to cooperate with the disciplinary investigation. In re Moynihan, 97 Wn.2d 237, 643 P.2d 439 (1982).

The disciplinary proceeding was based upon complaints from several former clients regarding neglect of legal matters by Moynihan. During the investigation of those matters, the Bar conducted an examination of Moynihan's trust accounts, which disclosed misappropriations of client funds totaling approximately $5,100 from October 1978 through June 1980. In attempts to repay his account, Moynihan deposited approximately $5,900 into the trust account before investigation by the Bar.

Moynihan attributes the conduct which led to his disbarment to excessive alcohol use. He began drinking when he was 14 years old and continued throughout college, his tour in the Navy, his marriage, law school and his practice. It was not until 1980 that Moynihan recognized for the first time that he needed treatment for his alcoholism. In December 1980, Moynihan entered a 6-week inpatient hospitalization at the Veterans Administration Hospital in Tacoma, Washington.

After completion of the program, Moynihan moved to California to begin a new life. During the next 4 years he had no further alcohol counseling or treatment other than occasional meetings of Alcoholics Anonymous (AA). In [221]*2211984, Moynihan was introduced to a group of recovering alcoholic attorneys and judges. Soon thereafter he began attending weekly meetings with different groups of recovering lawyers and also began attending weekly Alcoholics Anonymous meetings. To this day he actively participates in regular AA activities.

In November 1988, Moynihan petitioned for reinstatement. The Board of Governors unanimously recommended that Moynihan be reinstated.

Reinstatement

The major consideration in reinstatement proceedings is whether the disbarred attorney has overcome those weaknesses which produced the earlier misconduct. In re Butler, 110 Wn.2d 95, 97, 750 P.2d 641 (1988); In re Johnson, 92 Wn.2d 349, 351, 597 P.2d 113 (1979). A petitioner for reinstatement to the Bar must show by clear and convincing evidence that he is rehabilitated, fit to practice, competent and has complied with all applicable discipline orders and rules. In re Stroh, 108 Wn.2d 410, 413, 739 P.2d 690 (1987); In re Johnson, supra at 350. This court utilizes eight criteria to assess whether to reinstate a disbarred attorney.

(a) the applicant's character, standing, and professional reputation in the community in which he resided and practiced prior to disbarment; (b) the ethical standards which he observed in the practice of law; (c) the nature and character of the charge for which he was disbarred; (d) the sufficiency of the punishment undergone in connection therewith, and the making or failure to make restitution where required; (e) his attitude, conduct, and reformation subsequent to disbarment; (f) the time that has elapsed since disbarment; (g) his current proficiency in the law; and (h) the sincerity, frankness, and truthfulness of the applicant in presenting and discussing the factors relating to his disbarment and reinstatement.

In re Eddleman, 77 Wn.2d 42, 44, 459 P.2d 387, 461 P.2d 9 (1969). These criteria are intended to implement the requirements of RLD 9.6(a) that an applicant for reinstatement show "that his or her reinstatement will not be detrimental to the integrity and standing of the judicial system [222]*222or to the administration of justice, or be contrary to the public interest." See In re Batali, 98 Wn.2d 610, 657 P.2d 775 (1983).

The Board unanimously found that Moynihan had demonstrated that he met each of the above criteria and recommended that he be reinstated. Where the Board is in a position to see and hear the witnesses and to observe the petitioner's demeanor, the court will give considerable weight to the Board's factual findings. In re Eddleman, supra at 45. A review of the record demonstrates that Moynihan has sustained his burden of proof on each of these elements.

A

Moynihan's character, standing, and professional reputation in the community in which he resided and practiced prior to disbarment.

In applying this criterion, this court reviewed the petitioner's community activities, letters from members of the community regarding character and professional reputation, and the existence of other disciplinary actions. In re Rosellini, 108 Wn.2d 350, 356, 739 P.2d 658 (1987). In evaluating the nature of petitioner's life prior to disbarment, this court has looked past the period of time during which the attorney had the problems which led to disbarment. In re Greenwood, 22 Wn.2d 684, 157 P.2d 591 (1945). Prior to becoming an alcoholic, Moynihan was routinely appointed by the court to handle criminal, domestic and guardianship proceedings. He also engaged in community projects, which worked to improve county services, did volunteer work and was a member of the Adams County Planning Commission. Petitioner also took part in the staging of community theater productions. In addition, he was active in local politics. Moynihan has demonstrated that, prior to the incident leading to disbarment, his character, standing, and professional reputation in the community were good.

[223]*223B

The ethical standards which Moynihan observed in the practice of law.

This inquiry focuses on the attorney's conduct outside of those specific events which led to his disbarment. In re Rosellini, supra at 356. The Bar's investigation revealed only one complaint in 1977 which was never pursued by the Bar. It was the finding of the Board that, to the extent those standards may have been compromised, such compromise was attributable to certain problems with alcohol. Apart from this complaint and the eventual disbarment, Moynihan had no disciplinary sanctions. Moynihan has demonstrated that he conducted himself in an ethical manner before he was disbarred.

C

The nature and character of the charge for which Moynihan was disbarred.

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In re the Disciplinary Proceeding Against Moynihan, 778 P.2d 521, 113 Wash. 2d 219, 1989 Wash. LEXIS 101 (Wash. 1989).

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