By William J. Wernz
Stock fraud, welfare fraud, civil fraud, theft by swindle, perjury, armed robbery, and a decade or so of dishonest activities—these were the impediments to bar admission or reinstatement that clients have faced in my many years of representing them. These matters were among the most challenging and rewarding I ever undertook. Almost all the clients now have law licenses and have become successful in their careers. I hope sharing my insights from working with these clients will help others.1
The evidentiary hearings (before the Lawyers Board or Board of Law Examiners) were the dramatic high point of these representations. Let me start with the questions I expected to ask at hearing, and the preparation needed for getting supportive and effective answers.
Questions
The witnesses I have called in reinstatement or admission hearings usually testified both as to facts and character. A witness or two were from the place of employment of petitioner (we’ll call her Pat), another might be a counselor or spiritual adviser. A lawyer or law professor might also testify, as well as an old friend. One witness was the donee of Pat’s kidney.
My first substantive questions were: “Do you know what actions of Pat have led to this hearing?” and “How do you know?” The witnesses responded that Pat had given them the documentary record of misconduct and tried to explain the misconduct. I would also ask, “Do you believe Pat‘s misconduct displayed Pat’s character or were actions that were out of character?” and “Why do you have this belief?”
After prepping witnesses on other questions, I would tell them to expect a special, final question. I did not want to rehearse or even know their answers. They should not memorize, but they should think carefully and speak from the heart. The final question was, “Do you have anything more to say to this hearing panel about why Pat should [again] be licensed as an attorney at law of the state of Minnesota?”
There was never a bad answer. The best answer was, “I would say that Pat has spent the last six years restoring her soul.” The restoration of Pat’s soul became the theme of the case. One witness was so persuasive that a board member later asked me, “Bill, if I ever get in trouble, could you ask the reverend to testify for me?”
My last witness was always Pat. I wanted Pat to hear that people whom she knew, respected, and often loved, would swear that the better angels of her nature were now ascendant. Pat was always the star of the show. Zealous and experienced lawyering, and solid witnesses, would not persuade the hearing panel if Pat was evasive, or in denial, or treated the proceeding as pro forma.
One admission client told me before the hearing, “It’s not that I don’t care about the result. I do want to be a lawyer. But the most important thing—what we went through preparing for this hearing—has already happened. I’m very grateful for that. I know and my witnesses know I’m a better person.”
Hearing preparation
“A searching and fearless moral inventory.” The first step for a petitioner or applicant who has committed serious misconduct is also the fourth step of Alcoholics Anonymous. The inventory requires getting the facts straights and complete, giving the misdeeds due weight, and trying to understand the reasons for the misconduct. In some cases, the misconduct was in a generally lawless phase of life, but in others it was isolated. In a typical first meeting, the client gives an account of past misconduct that is perhaps 70-80 percent complete and accurate. Before filing an application or petition, the client must fully come to terms with the facts and their meaning.
Proof of “moral change” is the most important requirement for reinstatement and “rehabilitation” as proof of good character is the parallel standard for bar admission. Related issues, such as recognition of past misconduct and the continuing impact of “suffering from thought distortions,” are considered under the rubric of moral change.2
Gaining a law license involves many legal and procedural requirements, but the petitioner must understand that although these hurdles are important, the heart of the matter is personal, moral, and even spiritual. “[T]o prove moral change a lawyer must show remorse and acceptance of responsibility for the misconduct, a change in the lawyer’s conduct and state of mind that corrects the underlying misconduct that led to the suspension, and a renewed commitment to the ethical practice of law.”3
The inventory can be difficult. One problem is that we tend to remember versions of our own misdeeds and shortcomings. For bar applicants, the facts may be old, complex, and incompletely documented, as in juvenile records. One applicant—who committed frauds for years under a dominant older person—tried to identify and disclose all his misconduct, but the board found more. Sometimes it may be best to state candidly that the disclosed list of misconduct may be incomplete.
The inventory requires self-understanding—why did I act so badly? If the misconduct was isolated, why did I act out of character? If the misconduct involved a pattern of bad behavior over a period of years, is there another time when my better self was manifest? A counselor or spiritual advisor may well be needed.
Some bar applicants who would otherwise gain admission without difficulty create problems by omitting or inaccurately describing past problems. The standard of admission is current good character. A current inaccurate report converts a past problem into a current issue. “The applicant’s candor in the admissions process” and “the materiality of any omissions or misrepresentations” are crucial factors.4
Reinstatement law sheds light on admissions law, in two ways. First, a reinstatement petitioner “is required to provide stronger proof of good character and trustworthiness than is required in the original application for admission to practice.”5 A bar applicant can argue that if a petitioner was reinstated notwithstanding very severe misconduct and imperfect rehabilitation, an applicant with similar or lesser problems should, a fortiori, be admitted. For example, I pointed out that an applicant’s stock fraud offense occurred 19 years before the admission hearing, while a lawyer who was convicted of fraud in business dealings was reinstated after five years.6 Second, about 30 years ago, the Minnesota Supreme Court stopped publishing opinions on bar admissions appeals. Without recent bar admission jurisprudence, bar applicants may borrow from reinstatement law.7 Applicants should also rely on bar admission rules, which codify relevant standards in far more detail than their reinstatement counterparts. Indeed, the Board of Law Examiners uses these rules as a road map for their analysis.8
A petitioner must be patient, because establishing moral rehabilitation is a multi-step process. The petitioner may need years to build a record of rehabilitation, achieve self-understanding, make amends, and work with witnesses who can testify to a successful process. An insufficient time for preparation will be all too evident: “Disconcerting to the Panel was that the conversations the character witnesses had with petitioner regarding his moral change took place in only the last three to four weeks. The character witnesses have all known the Petitioner dating back well before his suspension. The knowledge of Petitioner’s misconduct each displayed at the hearing seemed superficial/incomplete, thus the weight the Panel gave to their testimony as to his moral change is not great.”9
Admitting and explaining misconduct, remorse
In addition to moral change, for reinstatement the Minnesota Supreme Court considers (1) recognition of wrongfulness; (2) the time since the misconduct and discipline; (3) seriousness of misconduct; (4) factors susceptible to correction, such as illness or transitory pressure; and (5) competency to practice.10
The Court has repeatedly said, “We typically look favorably on petitioners who have openly admitted the wrongfulness of their conduct.”11 Admitting wrongfulness is—with a very limited exception, discussed below—an essential first step.
A witness cannot testify to rehabilitation without knowing the exact nature of the related misconduct. Testimony reflects adversely on the applicant’s candor when the witness has not been told the whole truth. In one case, five character witnesses were ineffective because they were unfamiliar with the petitioner’s misconduct and could not give clear examples of how he purportedly had undergone a moral change; the applicant also denied misconduct he had admitted at the time of suspension.12
Why does a person engage in very serious misconduct? An applicant must try to understand and explain. One of my clients testified that, although there were some relevant circumstances, she could not explain why she acted so out of character. I added that the human heart is sometimes a mystery, even to itself.
Petitioners must understand the difference between explaining and explaining away misconduct. The distinction is fine enough that Lawyers Board panels have twice erred in making adverse findings that petitioners tried to explain away their misconduct.13 Petitioner can testify, “I do not explain away my misconduct as the fault of others, or as the product of circumstances, but in trying to understand what I did, I believe some circumstances are relevant.”
First impressions
The petition or bar application makes the first impression on both the staff attorney who investigates and the board members who conduct an evidentiary hearing. To make a good impression, the petition should aver that petitioner has complied with all specific requirements of the discipline order and Rules 18, 24(d) and 26, R. Law. Prof. Resp. In my view, the petition should provide some specifics supporting averments that the petitioner is (1) competent to practice law; (2) has achieved insight into prior moral failings; (3) is reliable and honest; (4) has addressed any chemical or psychological issues; and (5) has made amends for misconduct.
A complete and accurate petition, or bar application, is Exhibit A for the record. Staff attorneys investigate the petition or application, and make a recommendation to the board. A positive recommendation is very important. A staff attorney who has little left to investigate because the petitioner has provided most of the necessary facts and evidence is more likely to recommend licensure.
The petitioner should understand that the process will be searching and deep. The counsel who investigate petitions are experienced and capable. The investigation includes searching court records and contacting prospective witnesses, employers, and others. One client included a felony conviction on an employment application, but the employer did not notice it or ask any questions, and later promoted the client to a supervisory position. When OLPR counsel interviewed the employer, she reported that after the promotion the petitioner informed her of the conviction and she later testified in support of the petition.
The board hearing members are dutiful, discerning, and fair. The basic issue—whether the Court can confidently certify a petitioner or applicant as competent and trustworthy to handle clients’ important affairs—requires much of all involved. Petitioner and counsel must show the board members respect. Petitioner and counsel should sincerely thank them for their volunteer efforts in undertaking a difficult task.
In one hearing a lawyer-witness for petitioner decided, in defiance of my preparatory instructions, to give what amounted to his own closing argument. He told the board that the petitioner was wrongly convicted and that the board would abet the injustice if they did not do their plain duty by recommending that petitioner be licensed. When the witness left the room, I apologized for him. I told the board members that we knew they had a heavy burden in doing their duty, that they were required to regard the conviction as dispositive, that the petitioner would respect their determination, whatever it was, and that we would not have called the witness if he had disclosed his intended testimony.
Denying misconduct: A very limited permission
In this same case, my client insisted that he was wrongly convicted of stock fraud and that he was the victim of a big-time manipulator who inveigled small brokers into unrecognized fraud. Refusal to admit wrongdoing can preclude bar admission, as where the applicant pled guilty or there was overwhelming evidence of a crime for which specific intent was not required.
However, a famously convicted and disbarred lawyer, Alger Hiss, regained his license, notwithstanding that he would not admit the perjury for which he had been convicted. The Massachusetts Supreme Court explained, “Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit.” The Minnesota Supreme Court has followed Hiss.14
In presenting the admission case, we acknowledged that the board had to regard the conviction as dispositive, but we asked the board to consider that the applicant’s insistence on innocence was not wholly unreasonable. To do that, we presented a very condensed portion of the evidence in the stock fraud case. The client was admitted.
Reinstatement after disbarment or lengthy suspension
The gravity of an offense only “rarely” precludes reinstatement. The Court declined to make permanent the disbarment of a lawyer who arranged the murder of his wife and, after his release from incarceration 20 years later, plundered the assets of an elderly widow.15 In recent years, the Court has reinstated several petitioners after disbarment.16 Some of the petitioners still had substantial problems.
Believing that “human beings, generally, are redeemable,” the Court has characterized unwarranted denials of reinstatement as a “cruel hoax.”17 Reinstatement petitions have succeeded in some cases where the petitioner appears far from perfect. Most recently, a hearing panel found that a petitioner was remorseful only “to the extent to which he is capable.” This extent was limited, because petitioner, “continues to deflect responsibility for his problems and blame financial circumstances, rather than his own decisions.” Petitioner “was less than forthright” with his own character witnesses in describing his misconduct. The panel was “troubled” by the “lack of depth” in petitioner’s statements of remorse and amends. The Director argued that the panel’s reinstatement recommendation was clearly erroneous, but the Court followed the recommendation.18
The Court does not give deference to the board panel’s recommendation regarding reinstatement; more importantly, though, without clear error the Court will not reverse panel findings regarding key, often-decisive issues, such as moral change, remorse, and credibility.19 The clear error standard makes the panel hearing and findings extremely important.
In 1989, the Lawyers Board adopted a Panel Manual to guide panels, respondents, and reinstatement petitioners in the law and procedure for hearings and pre-hearing procedures. Unfortunately, the manual cannot now serve its purpose, because it was last updated in 2007. The effects of this neglect are apparent in two cases where board panels made the same clear error. In the second case, the Court specifically and repeatedly cited the first case.20 There is nothing to prevent the same error a third time.
Summing up
In reinstatement petitions and bar admission character and fitness proceedings, all concerned parties—the Court, its board, their staffs, the petitioner or applicant, counsel, and witnesses—deal with deep and important things. Especially when the petitioner has committed dishonest and even felonious conduct, a great deal of evidence and caution are needed before deciding to certify the petitioner as one who can handle the public’s important and intimate matters. I am privileged to have played an important role, as counsel, in a number of these proceedings. More importantly, I was challenged and inspired in preparing petitioners for the hearings. The rigorous journeys needed for success, in a personal as well as a legal sense, were difficult and profound. I hope this article will assist future petitioners and applicants.
Notes
1 This article updates and expands on subjects addressed in William J. Wernz, Character, Fitness and Redemption, Bench & Bar of Minn., Oct. 2007. This article also addresses these subjects more from the perspective of a lawyer representing and advising clients.
2 In re Severson, 2019 Minn. LEXIS 64, 2019 WL 575856.
3 In re Mose, 843 N.W.2d 570, 575 (Minn. 2014).
4 Rule 5. B.(4)(i) and (j), R. Bd. Law. Exam.
5 In re Ramirez, 719 N.W.2d 920, 925 (Minn. 2006).
6 In re Scallen, 269 N.W.2d 834 (Minn. 1978); 337 N.W.2d 694 (Minn. 1983).
7 Recent important cases include In re Severson, 889 N.W.2d 291 (Mem) (Minn. 2016) (denying reinstatement) and In re Severson, 2019 Minn. LEXIS 64, 2019 WL 575856 (granting reinstatement). Other important cases include Dedefo, Griffith, Stockman, Ramirez, and Anderley, cited below.
8 Criteria for identifying relevant misconduct, considerations for weighing the misconduct, and factors proving “rehabilitation” from the misconduct are specified in Rule 5, especially subparts (d) and (e), R. Bd. Law. Exam. Reinstatement procedures and requirements are found in Rule 18, R. Law. Prof. Resp. Rule 26 prescribes “Duties of Disciplined, Disabled, Conditionally Admitted, or Resigned Lawyer.” “Petitioner” is used here both for bar admission applicants and reinstatement petitioners.
9 Panel Findings of Fact, Conclusions of Law and Recommendation, In re Severson, 889 N.W.2d 291 (Mem) (Minn. 2016). The Panel added, “Compare In Re Petition for Reinstatement of Dedefo, 781 N.W.2d 1 (Minn. 2010) where petitioner’s character witnesses were aware in great detail of Dedefo’s conduct almost from the day Dedefo’s suspension occurred.”
10 In re Singer, 735 N.W.2d 698, 703 (Minn. 2007).
11 In re Dedefo, 781 N.W.2d 1, 10 (Minn. 2010), citing In re Wegner, 417 N.W.2d 97, 99 (Minn. 1987).
12 In re Griffith, 883 N.W.2d 798, 802 (Minn. 2016) (Reinstatement denied).
13 In re Stockman, 896 N.W.2d 851 (Minn. 2017); In re Dedefo, 781 N.W.2d (Minn. 2010).
14 In re Hiss, 333 N.E.2d 429, 437 (1975). In re Hedlund, 293 N.W.2d 63, 65–66 (Minn. 1980). “A disbarred attorney is not required to admit his past misdeeds nor make a rote confession of remorse and repentance as a precondition for reinstatement.” In re Swanson, 405 N.W.2d 892 (Minn. 1987).
15 Ramirez, 719 N.W.2d at 925. In re Thompson, 365 N.W.2d 262 (Minn. 1985) (discussed in William J. Wernz, Character, Fitness & Redemption, Bench & Bar of Minn., Oct. 2007.) The Court did deny Thompson’s reinstatement. The Court once ordered a permanent disbarment (for “indecent assault” of a 15-year-old boy), but it is doubtful it would do so again. In re Van Wyck, 290 N.W. 227 (1940); 29 N.W.2d 654 (1947).
16 In re Lieber, 834 N.W.2d 200, 202 (Minn. 2013); In re Ramirez, 719 N.W.2d 920 (Minn. 2006); In re Anderley, 696 N.W.2d 380 (Minn. 2005); In Re Trygstad, 472 N.W.2d 137, (Minn. 1991).
17 In Re Trygstad, 472 N.W.2d 137, 140 (Minn. 1991). In re Kadrie, 602 N.W.2d at 877, citing In re Swanson, 343 N.W.2d 662, 664 (Minn. 1984).
18 In re Severson, (Minn. 2019) supra. The Court denied Severson’s prior reinstatement petition. In re Severson, 889 N.W.2d 291 (Mem) (Minn. 2016). Perhaps Severson’s current age (78) and apparent lack of intent to engage in the private practice of law produced sympathy for him.
19 In re Dedefo, 781 N.W.2d 1, 7 (Minn. 2010); In re Mose, 843 N.W.2d 570, 573 (Minn. 2014).
20 In re Stockman, 896 N.W.2d 851, 857-8 (Minn. 2017), cited In re Dedefo, 781 N.W.2d (Minn. 2010) four times in less than one page, repeatedly stating, “As in Dedefo, ...”
WILLIAM J. WERNZ is a member of the Board on Judicial Standards. Bill was also director of both the Client Security Board and the Office of Lawyers Professional Responsibility, and he is the author of Minnesota Legal Ethics, a free online treatise hosted by MSBA. Bill was Dorsey & Whitney’s ethics partner for 20 years.