IN THE MATTER OF VSB Docket No. 00-000-1844
PATRICK D. KILLEBREW
ORDER OF RECOMMENDATION
On April 27, 2001, this matter came before the Disciplinary Board consisting of Randy I. Bellows, Chester J. Cahoon, Jr., Robert L. Freed, D. Stan Barnhill, and John A. Dezio, Second Vice Chair, on the Petition for Reinstatement by Patrick D. Killebrew to reinstate his license to practice law in the Commonwealth of Virginia. Mr. Killebrew surrendered his license to practice law on November 4, 1992, after being charged with possession of a controlled substance. The petitioner was represented by Craig S. Cooley of Richmond, Virginia. Paul D. Georgiadis, Assistant Bar Counsel, appeared for the Virginia State Bar. The hearing was transcribed by Donna T. Chandler, Court Reporter, Chandler & Halasz, Inc., P.O. Box 9349, Richmond, VA 23227, telephone (804)730-1222.
This matter is governed by Rule 13(J) of the Rules of the Supreme Court of Virginia, Part Six, Section IV. Pursuant to that provision, it is the petitioner's burden to show by clear and convincing evidence that he is a person of honest demeanor and good moral character and that he possesses the requisite fitness to practice law.
In addition to the testimony of the petitioner, the Board heard and considered the testimony of three witnesses who appeared on the petitioner's behalf: Cary B. Bowen, a Richmond attorney who represented the petitioner in his criminal proceeding in 1992 and who has maintained contact with the petitioner over the years since petitioner's conviction; George H. Hettrick, a Richmond attorney active in Virginia's "Lawyers Helping Lawyers Program" who has worked with the petitioner in that program since 1995; and Walter C. Hooker, a Richmond attorney who has utilized petitioner's services as a title examiner over the last five years and has had occasion to observe petitioner in his business pursuits on almost a daily basis during that period. The Bar did not oppose the Petition of Reinstatement and presented no evidence in rebuttal. In fact, the Bar expressly conceded in closing statements that in the Bar's view petitioner had carried his burden of demonstrating by clear and convincing evidence that petitioner now possesses the requisite fitness to practice law.
The Board also reviewed the petition filed by the petitioner, the testimony and documentary evidence presented at the hearing, including petitioner's Answers to Requests for Bill of Particulars, and letters from the community in response to the Bar's publication of the public hearing on petitioner's Petition for Reinstatement. The Board considered the following factors in reaching its conclusion and recommendation to the Supreme Court as outlined by this Board in In re Hiss, VSB Docket No. 83-26 (May 24, 1984):
1. The severity of the petitioner's misconduct including but not limited to the nature and circumstances of the misconduct;
2. The petitioner's character, maturity, and experience at the time of his disbarment;
3. The time elapsed since the petitioner's disbarment;
4. Restitution to clients and/or the Bar;
5. The petitioner's activities since disbarment including, but not limited to, his conduct and attitude during that period of time;
6. The petitioner's present reputation and standing in the community;
7. The petitioner's familiarity with the Rules of Professional Conduct and his current proficiency in the law;
8. The sufficiency of the punishment undergone by the petitioner;
9. The petitioner's sincerity, frankness, and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement; and
10. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored.
In order to assess the Hiss factors in the context of petitioner's Petition for Reinstatement, it is important to first recite the circumstances that gave rise to petitioner's surrender of his license in 1992 and the material events that have occurred in petitioner's life since 1992, as established by clear and convincing evidence at the hearing.
Petitioner first obtained a law license to practice in the State of Washington in 1984. He subsequently obtained a Virginia license in 1987. Petitioner continually practiced in Virginia from 1987 until the surrender of his license in 1992, primarily as a solo practitioner. During the course of his practice in Virginia, petitioner continuously abused alcohol and periodically experimented with drugs. In 1992, petitioner illegally purchased and smoked heroin on repeated occasions for the intended purpose, however illogical, of reducing his dependence on alcohol. Petitioner voluntarily surrendered his license on November 4, 1992, which the Bar formally accepted on December 2, 1992. Prior to the surrender of his license, petitioner had been arrested and charged with possession of a schedule I controlled substance (heroin), a felony under Virginia Code ß 18.2-250. On November 5, 1992, petitioner pled guilty to the pending felony charge and was given a 10-year suspended sentence.
On November 6, 1992, the Bar received a complaint against petitioner from Samuel Jones. Mr. Jones contended that petitioner had agreed to represent him in a criminal proceeding for $1,500. Petitioner had collected from Mr. Jones $980 toward the fee prior to surrender of his license, the bulk of the collected funds having been received after petitioner's arrest for heroin possession on October 10, 1992. On October 17, 1992, petitioner had informed Mr. Jones that he could not represent him but refused to return the $980 previously paid. The circuit court ultimately assigned Mr. Jones new counsel.
On December 17, 1992, petitioner voluntarily entered the substance abuse program sponsored by the Hunter Holmes McGuire Medical Center in Richmond, Virginia. He was admitted to the inpatient program at this facility on January 11, 1993, where he remained until February 12, 1993. Thereafter, petitioner faithfully attended weekly therapeutic group sessions. During the course of these sessions, petitioner was randomly sampled for drug and alcohol use, with all tests negative. At the hearing before the Board, petitioner testified that he has been drug and alcohol free from his admission for inpatient treatment on January 11, 1993, to the present.
Petitioner gave all the appropriate notices required by Bar subsequent to the surrender of his license. Petitioner was discharged from probation for his felony conviction on August 17, 1994.
On October 20, 1994, the State of Washington suspended the petitioner's license to practice in that State for a period of two years, with the suspension made retroactive to July 29, 1993. By order dated November 15, 1995, the State of Washington reinstated petitioner's license, predicated on a two-year probation in which petitioner had to abide by an agreement with Virginia's Lawyers Helping Lawyers Program. Petitioner successfully complied with the terms of that agreement over the next two years.
Petitioner filed a voluntary Chapter 7 bankruptcy petition on June 22, 1994, and received a discharge on October 30, 1994. From September of 1993 to May of 1995, petitioner was employed as a real estate title examiner for a Richmond-based title company. From May of 1995 to the present, petitioner has been a self-employed title examiner, with the majority of his work performed as an independent contractor for Virginia Title and Closing of Richmond, Virginia. Petitioner has worked during this period of time in close daily contact with Walter L. Hooker, a Richmond attorney associated with Virginia Title and Closing.
On August 11, 1995, petitioner took the Multistate Professional Responsibility Examination, scoring a scaled score of 100. Over the five years prior to the filing of his Petition for Reinstatement on December 29, 1999, petitioner has also completed in excess of 12 hours of CLE programs each year since 1994-95, with an excess of two hours of ethics credit earned each year. Petitioner, therefore, has complied with the requirements in Paragraph 13(J), Part 6, ß IV, that he demonstrate participation in at least 60 hours of continuing legal education programs, of which at least 10 hours was devoted to legal ethics or professionalism, in the five years preceding the filing of the Petition, and that he had obtained a score of 85 or higher on the professional responsibility exam. In further compliance with the aforesaid Paragraph 13(J), petitioner has also refunded the paid fee owed Samuel Jones and further refunded the Client Protection Fund the $1,000 it had paid another of petitioner's clients subsequent to his loss of license.
Since 1992, petitioner has remained married to his wife, has provided for her and his son financially, and has been involved in numerous community activities. Between 1993 and 1995, petitioner worked at the Sacred Heart Center in Richmond, Virginia. He started an Alcoholics Anonymous program at the Center as well as assisted in food and clothing distribution during one Christmas season. Since 1997, petitioner has served as a youth basketball coach for the YMCA and the Reams Road Athletic Association. Petitioner also served on the Richmond area committee for Lawyers Helping Lawyers from 1997 to 1999 and served as a monitor for the program between 1997 and 1999. Since 1999, petitioner has also served as first vice president for the Shenandoah Community Association.
At the hearing, Cary Bowen testified that he had known the petitioner since his representation of the petitioner in his criminal proceeding in 1992. Mr. Bowen stated that he has been impressed with the extraordinary manner in which the petitioner has rebuilt his life. According to Mr. Bowen, the petitioner has demonstrated no signs of drug or alcohol use since his conviction. The petitioner lost weight, restored his relationship with his wife and child, became active in youth activities, and has exhibited an ongoing commitment to alcohol and drug recovery. Mr. Bowen opined that the petitioner has the fitness to practice law and should be granted a license to do so.
The petitioner's second witness, George Hettrick, testified to the petitioner's involvement since 1995 in the Lawyers Helping Lawyers Program, both as a participant and as a mentor. Mr. Hettrick likewise opined that the petitioner was ready to practice law and that the public could have confidence that he possessed the requisite fitness to do so.
The petitioner's third witness, Walter Hooker, testified that he has been in almost daily contact with the petitioner over the last five years. Mr. Hooker described the petitioner as a dependable title examiner of exceptional ability and a person of integrity. During the course of this relationship, Mr. Hooker has observed no conduct suggestive of any form of drug or alcohol abuse. Mr. Hooker opined that the petitioner was fit to practice law again in Virginia.
Finally, the petitioner testified to his years of drug and alcohol abuse prior to 1993, to the treatment he received beginning in 1993, to his continued participation in Alcoholics Anonymous, to his community involvement, and to his reliability and success as a title examiner. The petitioner also acknowledged that he was responsible for the problems that resulted in the loss of his license but that he was committed to continue his personal battle with alcohol and drug abuse for the remainder of his life. The petitioner expressed the desire to practice principally in the real estate area upon reinstatement of his license as a supplement to his successful title examiner business.
The overwhelming majority of letters filed with the Bar expressed the view that the petitioner's license should be reinstated.
Based on the evidence presented, as summarized above, the Board makes the following findings with respect to the Hiss factors quoted above:
1. The severity of the petitioner's misconduct including, but not limited to, the nature and circumstances of the misconduct.
The Board finds that the misconduct that resulted in petitioner's surrender of his license was severe. The petitioner committed a felony in possessing and using a controlled substance. The petitioner admittedly suffered from addiction to alcohol which contributed to his illegal drug use. Nevertheless, the petitioner has demonstrated remarkable success over the last eight years in overcoming the debilitating effects of his addiction.
2. The petitioner's character, maturity and experience at the time of his disbarment.
At the time of his loss of license, the petitioner was 43 years old and had been practicing law for approximately eight years.
3. The time elapsed since the petitioner's disbarment.
The petitioner surrendered his license in November of 1992, over eight years ago.
4. Restitution to clients and/or the Bar.
The petitioner has made full restitution.
5. The petitioner's activities since disbarment including, but not limited to, his conduct and attitude during that period of time.
After loss of his license and completion of inpatient treatment, the petitioner embarked on a new career as a title examiner, which career has flourished over the years due to the petitioner's dependability and skill. The petitioner has continued to provide for his family and to be involved in the life of his son. He has participated in community betterment programs. He has worked to remain drug and alcohol free through intensive, ongoing involvement with the Alcoholics Anonymous Program. He has conveyed to those who know him and to the Board a keen awareness that his battle with drug and alcohol dependency must be never-ending. He has admitted his responsibility for his prior errors and has exhibited over the last eight years a determination to avoid such errors in the future. His attitude is one of humility and a desire to perform at the high level required of a practicing attorney in the Commonwealth of Virginia if his license should be reinstated.
6. The petitioner's present reputation and standing in the community.
The overwhelming majority of letters received by the Bar and petitioner's witnesses describe a person of high moral standards and dedication to family, community, and the legal profession.
7. The petitioner's familiarity with the Rules of Professional Conduct and his current proficiency in the law.
The petitioner has fulfilled all CLE requirements, including ethics, since 1994-95. He has passed the professional responsibility exam. He has continued to work in a field closely associated with the practice of real estate law for the last eight years.
8. The sufficiency of the punishment undergone by the petitioner.
The Board perceives that the loss of license, the felony conviction, the dire financial troubles that initially resulted from these events, and the petitioner's successful and ongoing struggle to overcome his addiction undoubtedly constitute sufficient punishment for his prior misconduct.
9. The petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement.
The petitioner was sincere, frank, and truthful in his presentation to the Board. He exhibited great remorse for the actions that led to his loss of license. He blamed no one but himself for his problems. He expressed recognition and appreciation for the high professional and moral conduct required of lawyers and a keen desire to rejoin the profession.
10. The impact upon public confidence in the administration of justice if petitioner's license to practice law was restored.
The professional rules governing the practice of law in Virginia recognize that persons who have lost their license can earn the right to reenter the profession and thereafter serve the public honorably and competently. The petitioner through his witnesses, the letters submitted on his behalf, and his own testimony has demonstrated that he is entitled to the second chance contemplated by the reinstatement rule. The Board believes that public confidence in the administration of justice would be undermined if the petitioner, who has worked so hard to overcome the problems that resulted in the loss of his license, was denied the opportunity after eight years to reenter the profession. The testimony and the documentary evidence proffered at the hearing support quite firmly the conclusion that the petitioner, if he continues on the course he has followed for the last eight years, will prove to be a valuable and contributing member of the Virginia State Bar.
In the light of the totality of the evidence presented concerning the petitioner's Petition for Reinstatement, it is the unanimous opinion of the Board that the petitioner meets the standards set forth in Hiss. It is therefore the recommendation of the Board to the Supreme Court of Virginia that the license of the petitioner, Patrick D. Killebrew, to practice law in the Commonwealth be restored at this time provided he reimburses the Bar for all of its assessed costs.
It is ORDERED that the Clerk forward this Order of Recommendation of Reinstatement of License to the Supreme Court of Virginia for its consideration and disposition.
It is further ORDERED that the Clerk of Disciplinary System forward an attested copy of this Recommendation Order by certified mail, return receipt requested, to the Petitioner at his address of record with the Virginia State Bar, 9440 Stanmore Place, Richmond, Virginia 23236, and to Craig Stover Cooley, Respondent's Counsel, 3000 Idlewood Avenue, P.O. Box 7268, Richmond, Virginia 23221-0268, and to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.
As required by the Rules of Court, Part 6, Section IV, Paragraph 13K(10), the Board finds the costs of this proceeding to be as follows:
Copying ................................ $ 559.40
Transcripts/court reporter...... 280.95
Mailing of notice of hearing.. 1,396.30
Administrative fee ................ 300.00
Total $ 2,536.65
VIRGINIA STATE BAR DISCIPLINARY BOARD
ENTER this day of June, 2001.
John A. Dezio, Second Vice-Chair