McWhorter v. Grievance Administrator

534 N.W.2d 480, 449 Mich. 130

• Court: Michigan Supreme Court
• Decided: July 5, 1995
• Docket: Docket No. 99848
• Status: Published

Opinions

Brickley, C.J.

In this case we decide whether the decisions of the tri-county hearing panel and the Attorney Discipline Board to reinstate petitioner’s license to practice law are supported by proper evidence on the whole record. We believe that a review of the entire record does not support the decision of the hearing panel or the Attorney Discipline Board to reinstate petitioner Robert McWhorter to the practice of law in this state at this time. We conclude that petitioner has not spent adequate time outside the supervision of parole authorities sufficient to demonstrate that he has a proper understanding of and attitude toward the standards imposed on members of the bar or that he will conduct himself in conformity with those standards. We therefore would reverse the decision of the Attorney Discipline Board and deny Mr. McWhorter’s petition for reinstatement, and would hold that petitioner may not reapply for reinstatement until June 28, 1997, five years from the date of his release from federal parole.

i

In December 1978, Robert McWhorter was found guilty in federal court of a ten-count indictment for the offense of aiding and abetting the manufacture of methamphetamine. 21 USC 841(a)(1), 18 USC 2(a), and 21 USC 841(b)(1)(B). He was sentenced to five years imprisonment with a special parole term of two years. As a result of this conviction, the Attorney Grievance Commission filed a formal complaint against petitioner in January, 1979.¹ Petitioner was disbarred by order filed June 8, 1979. However, the order of disbarment was later vacated by notice dated September 15, 1980, because the United States Court of Appeals for the Sixth Circuit vacated the decision and remanded the case for trial.²

Meanwhile, petitioner was convicted in Kalamazoo Circuit Court on May 29, 1980, for an unrelated incident of kidnapping, MCL 750.349; MSA 28.581, and conspiracy to kidnap, MCL 750.157a; MSA 28.354(1). As a result, a second formal complaint was filed on June 20, 1980, charging petitioner with violation of GCR 1963, 953(2) to (5), and Canon 1 of the Code of Professional Responsibility, DR 1-102(A)(3) and (4). The convictions arose out of the abduction of David Nixon from Mc-Whorter’s law office. The kidnapping was arranged by petitioner in order to extort money for the payment of McWhorter’s legal services. Petitioner’-s license to practice law was ultimately revoked, effective February 24, 1981, as a result of these convictions.

After remand on the federal charges, on October 3, 1980, petitioner was convicted of drug-related offenses in the United States District Court for the Western District of Michigan, Southern Division. A jury found petitioner guilty of conspiracy to import cocaine into the United States, aiding and abetting the manufacture of methamphetamine, and using a communication facility, i.e., a telephone, to facilitate the manufacture of methamphetamine. The jury also convicted Mc-Whorter of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine. 21 USC 841(a)(1). Petitioner was sentenced to ten years imprisonment with a two-year special parole term.³

The federal convictions arose out of petitioner’s attempt to finance a drug-smuggling trip to South America to purchase cocaine and marijuana. Mc-Whorter and an undercover Drug Enforcement Administration agent met and discussed McWhorter’s drug-smuggling scheme and his contacts with various drug sources. The dea agent told Mc-Whorter that he was interested in chemical drugs, and McWhorter responded that he knew a chemist who would manufacture drugs. Additionally, Mc-Whorter offered to render legal services to the undercover agent, proposing to set up a strawman chemical company in order to make detection of the drug scheme more difficult. On appeal, Mc-Whorter contended that he was involved in only one drug conspiracy, i.e., the manufacturing of methamphetamine in order to finance the South American drug-smuggling scheme. The United States Court of Appeals for the Sixth Circuit rejected his argument and affirmed the convictions.⁴

Petitioner served prison terms for both his federal and state convictions. He was released on parole in 1985 and sent to a halfway house in Grand Rapids for the following two months. On June 28, 1992, he was released from federal parole. Approximately three months before being released from federal parole, petitioner filed a petition for reinstatement of his license to practice law in Michigan.

A hearing was held by the tri-county hearing panel and it was determined that petitioner had established the requirements for reinstatement pursuant to MCR 9.123(B) by clear and convincing evidence. Petitioner was therefore reinstated with conditions, including payment of expenses, continuance of weekly therapy sessions, maintenance of church activities, and monitoring by a licensed attorney every two months for one year.

The Attorney Grievance Commission filed a petition for review of the hearing panel’s decision with the Attorney Discipline Board. Petitioner filed a cross petition for review, requesting that the conditions imposed by the hearing panel be removed. The Attorney Discipline Board remanded the case to the hearing panel, stating that there was not "sufficient evidence in the record upon which to evaluate the nature and scope of the 'supervision of federal authorities’ . . . .” In May, 1994, the Attorney Discipline Board concluded that the monitoring of petitioner by parole authorities was minimal and issued an order modifying the hearing panel’s order of reinstatement. The Attorney Discipline Board reinstated petitioner and removed the conditions imposed by the hearing panel. The Attorney Grievance Commission filed an application for leave to appeal, requesting review of the Attorney Discipline Board’s decision. We granted leave to appeal⁵ and now reverse.

ii

We review the decision of the hearing panel and the Attorney Discipline Board "for proper evidentiary support on the whole record.”⁶ Grievance Administrator v August, 438 Mich 296, 304; 475 NW2d 256 (1991).⁷ We simultaneously recognize that "[t]he power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate.” Id. at 304.⁸ A license to practice law is "a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court.” MCR 9.103(A). Cognizant of this responsibility, we review the decisions of the hearing panel and the Attorney Discipline Board to reinstate petitioner to determine if they are supported by the record as a whole.

A

In order to be reinstated, petitioner must establish that he is eligible for reinstatement by clear and convincing evidence, by proof that he has satisfied the criteria set forth in MCR 9.123(B)(1) to (7):⁹

(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;

(2) the term of the suspension ordered has elapsed or 5 years have elápsed since revocation of the license;

(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or revocation;

(4) he or she has complied fully with the order of discipline;

(5) his or her conduct since the order of discipline has been exemplary and above reproach;

(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;_.

(7) taking into account the nature of the misconduct which led to the revocation or suspension, he or she nevertheless can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court ....

The record appears to support both the hearing panel’s and the Attorney Discipline Board’s determination that petitioner has complied with sub-rules 1- to 5. We are therefore concerned only with whether the record as a whole supports the conclusion that petitioner has established the requirements set forth under subrules 6 and 7.¹⁰

We initially note that the decision whether to reinstate a disbarred attorney is a balancing process. Moreover, we conclude that a proper analysis of subrules 6 and 7 requires the balancing of several factors.¹¹ In reviewing the various factors, we recognize that no one factor is conclusive, but, rather, each must be evaluated in light of the others. Specifically, we must consider whether petitioner has spent sufficient time outside the supervision of parole authorities to clearly and convincingly establish that he has satisfied the requirements of subrules 6 and 7.

B

The passage of time, by itself, is not sufficient to support reinstatement.¹² The relevant inquiry is whether petitioner has spent an appreciable time outside the supervision of parole authorities in order for the hearing panel to fully evaluate the disbarred attorney’s present ability to comport with the fitness requirements. See In re Reinstatement of Callanan, 440 Mich 1207 (1992); see also August, supra. Moreover, the five-year period after which a disbarred attorney may petition for reinstatement is but "a minimum period in which rehabilitation may occur following revocation of the license to practice law; the passage of five years in no way guarantees eligibility for reinstatement.” Id. at 310. In Callanan, supra at 1207, this Court held by order that "[t]he misconduct that led to the revocation of the petitioner’s license to practice law was substantial and, because the petitioner had spent little or no time outside the supervision of federal authorities since his license was revoked, it was not possible for the hearing panel and the Attorney Discipline Board to determine the present fitness of the applicant for readmission.”

In August, an attorney was disbarred after, he was convicted of attempting to defraud the United States by conspiring with a court clerk in the United States Bankruptcy Court for the Eastern District of Michigan to manipulate the blind-draw system of assigning judges.¹³ In an attempt to avoid a judge known to carefully examine and reduce attorney fee awards, August and the clerk arranged the assignment of judges so that August’s firm avoided the judge in a significant number of cases.

August was imprisoned for approximately one year and was transferred to a halfway house. He remained there until November 19, 1985, when the district judge reduced his sentence to time already served. August filed a petition for reinstatement of his license to practice law in October, 1988. The Wayne County hearing panel denied his request.’ The Attorney Discipline Board held that August was eligible for reinstatement. 438 Mich 302-303. On appeal to this Court, we remanded the case to the Attorney Discipline Board to reexamine whether the petitioner could be recommended to a position of trust as a member of the bar. Significantly, we held that the hearing panel is not limited to a choice between reinstatement and permanent disbarment. Rather, we stated that a third alternative exists where it is determined that a sufficient period of time has not elapsed to judge whether the petitioner may be recommended for reinstatement.¹⁴_

Petitioner in the present case applied for reinstatement three months before his release from his federal parole. The Attorney Discipline Board remanded the case to the hearing panel to determine the nature and scope of the federal parole authorities’ supervision. The board held that petitioner was not subject to rigid authority during his final period of parole.¹⁵ However, the critical consideration is not necessarily the extent of supervision, but rather the fact that petitioner was under the supervision of parole authorities at the time he applied for reinstatement. Although in these proceedings the nature and scope of supervision may be relevant, the mere fact that petitioner had not been away from the supervision of parole authorities greatly influences the determination whether he has sincerely and sufficiently demonstrated that he will be able to understand and operate within the standards of the bar. Therefore, it is only after a petitioner has spent sufficient time outside the control of parole officers that the hearing panel or the Attorney Discipline Board is able to determine whether the petitioner has been rehabilitated and may therefore be safely recommended for reinstatement. Although he may not have been subject to strict scrutiny by parole authorities, petitioner was still serving his parole and, upon petition for reinstatement, must demonstrate his honorable behavior outside such authorities for a period that would enable this Court to safely recommend him to the public.¹⁶ To prevent the petitioner’s immediate reapplication in the present case, we hold that petitioner is not eligible for reinstatement until June 28, 1997, five years from the date of his release from federal parole.

We borrow this time span from MCR 9.123 and analogize it to the present case. For the same reasons, five years is the minimum period after which a disbarred attorney may be eligible for reinstatement, we would hold that it is a sufficient period outside the supervision of parole authorities and the contemplation of petition for reinstatement to fully evaluate his fitness to practice law. In August, supra at 310, this Court stated that five years was the minimum time in which a petitioner could apply for reinstatement, but in no way guaranteed eligibility for reinstatement. In accord with this decision, even though five years have elapsed since petitioner’s disbarment, we find that he is not eligible for reinstatement and wbuld impose this additional period of time to review his fitness. We are persuaded that this addresses the problem identified by one commentator: "The disbarred attorney may file another petition at a later date. In light of this, it would be helpful if the rules provided a minimum spacing between subsequent petitions to prevent a lawyer whose petition is denied from immediately filing another petition.” Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 579, author’s comment to MCR 9.123.

We further note that petitioner should not automatically be entitled to reinstatement at the expiration of five years; it is merely the minimum time before he should be permitted to apply for reinstatement because more time may be necessary to demonstrate his fitness. August, supra. If petitioner chooses to petition again for reinstatement after the specified date, he would be subject to a full review, including consideration whether he should be subject to permanent disbarment.

hi

We conclude that petitioner has not spent sufficient time away from the authority of parole officers to demonstrate by clear and convincing evidence that he may be safely recommended to the public, the courts, and the legal profession as a person fit to be consulted by others or to represent them and act in matters of trust and confidence. MCR 9.123(B)(7). Nor has sufficient time passed in order that he may demonstrate a proper understanding of and attitude imposed on members of the bar pursuant to MCR 9.123(B)(6). We therefore would reject petitioner’s application for reinstatement and would hold that he may not reapply for reinstatement until June 28, 1997, five years from the date of his release from federal parole. We therefore would reverse the decision of the Attorney Discipline Board.

Mallett, J., concurred with Brickley, C.J.

1 The formal complaint was dated January 10, 1979, charging petitioner with violation of GCR 1963, 953(1) to (5), GCR 1963, 969, and Canon 1 of the Code of Professional Responsibility, DR 1-102(A)(Í), (3) to (6).

2 Respondent remained suspended, however, as a result of an order of an Ingham County hearing panel filed on August 5, 1977. In that proceeding, petitioner was suspended from the practice of law for a period of 121 days for misconduct in handling client funds. This Court ultimately affirmed the order of discipline. State Bar Grievance Administrator v McWhorter (On Rehearing), 407 Mich 278, 282; 284 NW2d 472 (1979).

3 Petitioner was released from federal parole on June 28, 1992.

4 United States v McWhorter, 705 F2d 459 (CA 6, 1982).

5 447 Mich 1202 (1994).

6 The record "must include a list of docket entries, a transcript of testimony taken, and all pleadings, exhibits, briefs, findings of fact, and orders in the proceeding.” MCR 9.122(D).

7 See In re Grimes, 414 Mich 483; 326 NW2d 380 (1982); In re Freedman, 406 Mich 256; 277 NW2d 635 (1979). See also State Bar Grievance Administrator v Estes, 392 Mich 645, 649-650; 221 NW2d 322 (1974), reviewing this Court’s refusal to "substitute [its] judgment 'for that of the panel below which had an opportunity and a mandate not only to garner evidence of misconduct but to observe and assess the demeanor and credibility of the witnesses,’ ” citing State Bar Grievance Administrator v Estes, 390 Mich 585, 597; 212 NW2d 903 (1973).

8 See Const 1963,- art 6, § 5; see also Grimes, n 7 supra at 489-490, stating "[i]t is this Court, however, that has ultimate responsibility to oversee the conduct of the . . . members of the State Bar, and to keep unsullied the reputation of the profession.”

9 We do not consider MCR 9.123(B)(8) and (9) because they are not applicable in the present case.

10 Although each requirement under MCR 9.123(B) is interrelated, each subrule evaluates a different aspect of petitioner’s eligibility. In this manner, we held in August, supra at 310 that "subrule 6 is primarily directed to the question of the applicant’s ability, willingness and commitment to conform to the standards required of members of the Michigan State Bar. Subrule 7 shifts the focus to the public trust which this Court has the duty to guard.”

11 Quoting In re Raimondi, 285 Md 607, 618; 403 A2d 1234 (1979), we have previously summarized this balancing process in August, supra at 307, stating:

"On one side of the scale is placed the seriousness of the misconduct which produced disbarment and the court’s duty to society at large to see that only those persons who are worthy of the faith and confidence of the general public are permitted to handle the affairs of others. ... On the other side are placed the subsequent conduct and reformation of such individual, his present character, his present qualifications and competence to practice law, and the fact that the very nature of law practice places an attorney in a position where an unprincipled individual may do tremendous harm to his client.”

12 See In re Brown, 166 W Va 226, 235; 273 SE2d 567 (1980), stating: "Most courts hold that the mere passage of time alone is insufficient to warrant reinstatement.”

13 August was convicted under 18 USC 371 of conspiring to defraud the United States of the due administration of justice and under 18 USC 1503 of impeding the due administration of justice and attempting to influence a court clerk in the discharge of her official duties. Id. at 299.

14 This Court held:

Finally, we do not agree with the board’s assessment that the reinstatement criteria allow only two possibilities: that petitioner be now readmitted or forever barred from the practice of law in this state. A third alternative is illustrated in this case, where the hearing panel determined that petitioner "could not now be safely recommended as a person of trust.” [Id. at 312-313.]

15 The Attorney Discipline Board stated:

[T]he testimony of the parole officers established that his reporting on a monthly basis eventually consisted of little more than perfunctory meetings during which the petitioner confirmed his continued residence and employment in Kalamazoo.

16 We note that even though a period of time has now elapsed since petitioner was under the supervision of parole authorities, he has been involved in his petition for reinstatement since his release from parole. Therefore, we are equally unable to safely judge whether petitioner has now been rehabilitated — even though some time has elapsed outside the supervision of parole authorities — because his actions have been under similar, if not heightened, scrutiny by the Attorney Grievance Commission, the hearing panel, and the Attorney Discipline Board.