BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD
IN THE MATTER OF VSB Docket # 01-000-2767
M.T. KISSINGER, JR.
ORDER OF RECOMMENDATION
This matter came on for hearing on January 25, 2002 upon the Petition for reinstatement of M.T. Kissinger, Jr. to practice law in the Commonwealth of Virginia. The hearing was held before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Karen A. Gould, Werner H. Quasebarth, Janipher W. Robinson, Roscoe B. Stephenson, III and Randy Ira Bellows, Second Vice Chairman, presiding.
M.T. Kissinger, Jr. appeared in person and was represented by counsel, Paul Elton Turner, Jr. The Virginia State Bar was represented by Charlotte P. Hodges, Assistant Bar Counsel.
Tracy Stroh, Chandler and Halasz, Inc., P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222, was the reporter for the hearing and transcribed the proceedings.
On June 24, 1976, the petitioner was found guilty in the Circuit Court of the City of Norfolk on two felony counts. One felony conviction was for a violation of Section 18.1-119 of the Code of Virginia, to wit, knowingly making a false financial statement in writing to United Virginia Bank/Seaboard National with intent that it be relied upon for the purpose of obtaining a $10,000 personal loan. The second felony conviction was for a violation of Section 18.1-109 and 18.1-100 of the Code of Virginia, to wit, embezzlement from the Chesapeake Construction Corporation.
On August 13, 1976, while disciplinary proceedings were pending, the petitioner filed a petition seeking to surrender his license. On August 23, 1976, the Supreme Court of Virginia revoked the petitioner's license to practice law and struck the petitioner from the roll of attorneys of the Commonwealth of Virginia.
On January 21, 1998, the petitioner filed a Petition for Reinstatement of Law License with the Virginia Supreme Court. Following referral of the matter to the Disciplinary Board for purpose of a recommendation, a panel of the Board held a hearing on December 18, 1998 and recommended against reinstatement. See In the Matter of M.T. Kissinger, Jr., Docket No. 98-000-1499. On October 1, 1999, the Virginia Supreme Court accepted the Board's recommendation and denied Mr. Kissinger's petition for reinstatement.
On May 8, 2001, the petitioner filed this, his second Petition for Reinstatement of Law License, with the Virginia Supreme Court. On May 18, 2001, the Clerk of the Virginia State Bar referred the matter to the Virginia State Bar Disciplinary Board for a recommendation, pursuant to Part 6, Section IV, Paragraph 13(J) of the Rules of the Supreme Court of Virginia. Prior to the Board hearing, the Virginia State Bar took appropriate steps to insure the public's awareness of the Kissinger petition, including the issuance of a press release to various media organizations. The Board received letters both for and against the petitioner's reinstatement.
The matter came before the Board for hearing on January 25, 2002. Petitioner testified on his own behalf and called four witnesses. The Bar called no witnesses but opposed reinstatement.
The standard governing reinstatement is set forth at Part 6, Section IV, Paragraph 13(J) of the Rules of the Supreme Court, which reads as follows:
No license to practice law shall be reinstated for any revoked Attorney unless the Attorney demonstrates to the Board that he or she (1) within five (5) years of filing the petition has attended sixty (60) hours of continuing legal education of which at least ten (10) shall be in the area of legal ethics or professionalism, and has taken the Multistate Professional Responsibility Examination and received a scaled score of 85 or higher; (2) has reimbursed the Bar's Clients' Protection Fund for any sums of money it may have paid as a result of the Attorney's misconduct; and (3) has paid the Bar all costs that have been assessed against him or her, together with any interest due thereon.(1)
In addition to meeting the foregoing requirements, an Attorney whose license to practice law was revoked must also show by clear and convincing evidence that he or she is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.
In making the determination as to whether an attorney meets the stated criteria for reinstatement, the Board has consistently relied upon what is commonly known as the Hiss factors, see In the Matter of: Alfred L. Hiss, Docket No. 83-26. Those factors are as follows:
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 Virginia Code of Professional Responsibility 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.
10. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored.
These ten factors essentially capture the fundamental question posed by Paragraph 13(J): Has the petitioner established by "clear and convincing" evidence that he "is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law[?]" For the reasons stated below, the Board has concluded that the petitioner has met this standard and, therefore, should be reinstated by the Virginia Supreme Court to the practice of law in the Commonwealth of Virginia.
Because these matters are likely to recur in other petitions of this nature, it is worth setting forth at the outset two legal issues that the Board considered and resolved. First, does a prior felony conviction resulting in revocation of a petitioner's license to practice law constitute a per se bar to readmission? The Board concluded that it does not. If it were otherwise, petitions such as the one now before the Board would instantly be rejected without further consideration and would not even warrant evidentiary hearings. The Rules of the Supreme Court impose no automatic bar to reinstatement because of a prior felony conviction, and we are aware of no case law that create a similar requirement. Nevertheless, it should also be emphasized that a prior felony conviction - particularly one acquired while a petitioner was a licensed attorney - reflects misconduct of such gravity that it properly ought to cause this Board to proceed with great caution and to view with deep skepticism a petition for reinstatement. To put it another way, while a prior felony conviction does not create an irrebuttable presumption against reinstatement, it will be quite difficult - and, in many instances, impossible - for a petitioner clearly and convincingly to establish that he possesses the requisite "good moral character" required for reinstatement. This is particularly the case where the underlying offense is a crime of moral turpitude.
Second, the Board examined the issue as to what weight it should give the opinion and findings of a prior panel of this Board which considered, and recommended against, the petitioner's first petition for reinstatement. The Board concluded, as a matter of law, that a succeeding petition for reinstatement is a separate and distinct proceeding, that there is no issue of res judicata, and that each Board evaluating a petition for reinstatement must come to its own findings and judgments as to the Hiss factors and the overall determination as to the petitioner's character and fitness to practice law.
In sum, a Board considering Petition #2 is not bound by the findings of a Board which considered Petition #1, even if the issues are similar or even if they are the same. When the Virginia Supreme Court refers a reinstatement petition to this Board, it does so for the explicit purpose of having the Board "hold a hearing and file its recommendation...." See Part Six, Section IV, Paragraph 13(J)(1) of the Rules of the Supreme Court of Virginia. If this Board was constrained to adopt the findings and judgments of a prior Board, there would be little purpose in the Supreme Court making the referral in the first place. We must conclude that the Supreme Court, in making a referral in a case where there was a previous rejected petition for reinstatement, did not intend this to be a hollow exercise; rather, it reasonably follows from the referral that the Supreme Court intends and expects this Board to render its own considered and independent judgment.
It is equally clear, however, that due regard for the considered judgment of a prior panel of this Board counsels a succeeding panel to review the findings and recommendation of the prior panel with great care and attention. In other words, while this Board is not bound by the findings of a prior panel, such findings - particularly as to issues identical to those now before us - provide this Board the extraordinary benefit of having the wisdom and judgment of a prior panel available for its consideration.
Finally, where a prior panel has set forth its judgment as to a petitioner's deficiencies, and invited the petitioner to cure those deficiencies and renew his petition for reinstatement, it is entirely appropriate for this panel to evaluate whether those deficiencies have in fact been cured. If not cured, that properly ought to be a significant factor militating against reinstatement. On the other hand, if such deficiencies have been cured, that properly ought to be a significant factor supporting reinstatement. Indeed, substantial remediation activity may appropriately be viewed as compelling evidence of the petitioner's seriousness, competence and fitness.
Therefore, before we turn to matters occurring before this panel at the January 25, 2002 hearing, we review the findings and judgment of the panel that heard petitioner's first petition for reinstatement.
We quote in its entirety the findings and judgments of the panel that heard the first petition for reinstatement in 1998, as they were announced at the conclusion of the evidentiary hearing:
After a great deal of thought and discussion, it's the view of this Board that we're going to recommend to the Supreme Court that the petition for reinstatement be denied at this time.
However, we do think that, in essence, this petition is premature. We think that there are some activities that the petitioner could do to meet the Hiss factors that simply haven't been done yet, and in our opinion - and we do provide a written opinion of the basis for our recommendation to the Supreme Court. We'll go through each of the factors and our opinion will state why it is that we think they are not met sufficiently at this time.
But I can tell you that we are all of the view that the petitioner is sincere and truthful and that his efforts have been laudatory and we have very good things to say about many aspects of the petition and many aspects of the Hiss factors.
We have some concerns about the petitioner's competence to practice law at this time in view of what he has done up to now, and that is primarily the basis for our recommendation at this time. But we do want to indicate that we don't want nor do we recommend to the Supreme Court that this door be closed, but rather that we simply recommend denial of the petition at this time.
We have no question about the moral fitness of the petitioner to practice law. That is not the issue. So as I say, our written opinion will try to give a little more detail on that, but we did want to let you know that is the reason for our denial at this time, our recommendation at this time.
Subsequently, the panel hearing the first petition issued an Order of Recommendation, which considered each of the ten Hiss factors. This panel found as follows:
(1) The petitioner's prior misconduct, in that it involved felony convictions, was severe; however, the previous panel noted that the embezzlement conviction involved the embezzlement of personal property and labor from a corporation in which he was the sole shareholder and the fraud conviction involved the presentation of a false statement to a lender after the loan in question had already been approved and disbursed;
(2) At the time of the prior misconduct, the petitioner was an experienced and well regarded attorney who knew or should have known that his actions were unlawful and that the petitioner "lacked elements of character...."
(3) The time period between revocation and the petition for reinstatement was a sufficient period of time - 22 years - for the petitioner to be without his law license, noting however that it was the petitioner who determined when to seek reinstatement.
(4) There was no issue of restitution.
(5) Since revocation, the petitioner held a number of different jobs, none of which he maintained for an extensive period of time and, for the most part, he had been unemployed and remained at home because of depression.
(6) There was no evidence presented concerning the petitioner's reputation and standing in the community and in fact the evidence indicated that the petitioner had "removed himself" from the community.
(7) The petitioner had completed only 12 hours of continuing legal education, including four in ethics, during calendar year 1988. The previous panel found that the petitioner did not sustain his burden of proving by clear and convincing evidence that he was currently proficient in the law. Although the petitioner had successfully completed the educational requirements and examination for a real estate license, and had successfully completed the Multistate Professional Responsibility Examination, the previous panel noted that the petitioner had not practiced law for 22 years. Given the changes in the law occurring over this long period of time, the previous panel stated that it was not convinced the petitioner was currently proficient.
Significantly, the previous panel invited the petitioner to remedy this deficiency: "Because of his ability to complete the educational requirements and to pass these tests and because of the testimony of witnesses as to the intelligence and ability of the petitioner, the Board encourages the petitioner to pursue the necessary education to become proficient in the law, should he desire to resubmit his petition in the event the Supreme Court accepts the Board's recommendation to deny the petition at this time."
(8) The previous panel found that the punishment undergone by the petitioner was sufficient.
(9) The previous panel found that the petitioner was "sincere, frank and truthful in presenting and discussing factors relating to this disbarment and reinstatement."
(10) While many letters were presented to the previous panel by the petitioner in support of reinstatement, none of the letters addressed his current proficiency in the law nor the impact upon the public confidence in the administration of justice if the license of the petitioner to practice were restored.
In summary, the previous panel concluded that "although some of the Hiss factors have been positively addressed by the petitioner, other factors have not been positively addressed." Given that the burden was on the petitioner, the previous panel found that the standard for reinstatement had not been met.
In summary, the previous panel identified four areas in which the first petition was deficient: (1) the defendant's lack of job stability; (2) the absence of evidence of the defendant's reputation and standing in the community; (3) the lack of evidence of current proficiency in the law; and (4) the absence of evidence addressing the impact upon the public confidence in the administration of justice if the petitioner's license were to be restored.
This matter came on for hearing on January 25, 2002. In addition to the entire record of the 1998 proceedings, the Board had before it a number of letters in support of the petition for reinstatement, including several letters from members of the Bar. The Board also had several letters against the petition for reinstatement.(2)
The petitioner called four witnesses and testified himself. His witnesses may properly be described as both fact witnesses and character witnesses. Through these witnesses, and through the petitioner's own uncontradicted testimony, as well as the exhibits before the Board, the petitioner addressed the following deficiencies which had been identified by the prior panel:
(1) The petitioner has now held a responsible job with a car rental company for several years. This is a position which requires a high degree of fidelity and trust. Moreover, the petitioner has been entrusted with supervisory responsibilities and his attendance at work has been exemplary. Three years ago, the previous panel expressed concern about the petitioner's job stability. We conclude that the petitioner has remedied this deficiency.
(2) The petitioner's reputation and standing in the community is excellent. Although not all of the petitioner's witnesses were aware of the fact that the petitioner had been convicted of two felonies some 25 years ago, that does not undermine their testimony concerning his current reputation and standing in the community. The Bar called no witnesses to rebut or contradict this character testimony. Thus, we find that here, too, the petitioner has remedied a deficiency identified by the prior panel.
(3) The petitioner has made substantial efforts to remedy the prior Board's concern regarding the petitioner's current proficiency in the law. In particular, over the past four years, he has earned a total of 99.5 continuing legal education hours, 14.5 of which were in ethics. Less tangible, but still significant, is the considerable time which the petitioner has spent in the office of a practicing attorney, which has contributed to his current knowledge of the law. This Board finds that, on the critical issue of current proficiency in the law, the petitioner has successfully remedied the deficiency identified by the prior panel.(3)
(4) Finally, the petitioner presented testimony in support of his position that his reinstatement will not have a negative impact upon public confidence in the administration of justice. While this testimony alone is not dispositive, it must be considered in conjunction with other indications that the petitioner's reinstatement will not have a negative impact upon public confidence in the administration of justice. See discussion below.
The Bar called no witnesses either to address those Hiss factors which the previous panel had decided in petitioner's favor or to challenge petitioner's testimony that he had cured the deficiencies identified by the previous panel.
We find as follows:
(1) The petitioner's prior misconduct was severe. Embezzlement and false statements are crimes involving dishonesty and very serious lapses in moral judgment. Given such misconduct, the revocation of the petitioner's license to practice law was entirely warranted. We do note, however, one factor that, while it certainly does not mitigate the gravity of petitioner's past misconduct, is quite relevant to this Board's consideration as to whether to recommend the petitioner for reinstatement. That factor concerns: (1) whether the petitioner used his license to practice law as a tool to facilitate or further his unlawful activity; and (2) whether the petitioner's misconduct, in addition to being fraudulent, also abused a position of trust as an attorney. When attorneys break the law, it naturally undermines the confidence that we expect the community to repose in members of the Bar. When attorneys not only break the law but betray a client's trust, or abuse the privilege of their licensure, they make it immeasurably more difficult for other attorneys to establish critical fiduciary relationships and to perform their essential duties. We find that the petitioner's misconduct, as serious as it was, did not have these additional aggravating characteristics. If it were otherwise, this Board might well have far greater reservation about recommending to the Supreme Court that it once again extend to this petitioner the privilege of practicing law.
(2) At the time the petitioner's license was revoked, the petitioner was an experienced and mature attorney. He should have known better than to engage in such misconduct. This conduct reflects a failure of character.
(3) More than 25 years has elapsed since the petitioner's disbarment. There can be no question that sufficient time has elapsed between the misconduct that gave rise to disbarment and the instant petition.
(4) Restitution is not an issue.
(5) The petitioner's activities demonstrate that he is a responsible and contributing member of the community. In particular, he has held a significant position of trust and authority for several years.(4)
(6) Based primarily on the testimony of character witnesses, the petitioner's present reputation and standing in the community is excellent.
(7) We find that the petitioner is familiar with the Virginia Rules of Professional Conduct and the ethical requirements of a licensed attorney. He has taken and passed the Multistate Professional Responsibility Examination as well as 14.5 hours of continuing legal education on matters related to legal ethics. We also find that he has demonstrated "current proficiency" in the law. In this connection, the petitioner's record of having undertaken and completed extensive continuing legal education course work is especially significant.
(8) We find that the punishment undergone by the petitioner is sufficient.
(9) The Board finds that the petitioner was sincere, frank and truthful in his testimony. The Board was very impressed by the petitioner's candor, by his obvious sincerity, by his respectful demeanor, and by his evident appreciation of the trust and responsibility which would be vested in him should the Supreme Court approve his petition for reinstatement.
We also find it particularly significant that the petitioner, following the rejection of his 1998 petition, set out to address and cure each of the defects identified by the previous panel in its opinion. This is a compelling indication of the petitioner's seriousness of purpose, his respect for the processes of this Board and his resolve to regain the privilege of a law license. The petitioner, in his testimony before this Board, candidly admitted that, in retrospect, his 1998 petition was premature. That assessment is correct but so too is the petitioner's other assessment, specifically this: that he now "believes that he has cured the defects upon which his previous petition was denied." See Petition for Reinstatment at Paragraph 7. We agree.
(10) Finally, we come to the question of what impact reinstatement would have on public confidence in the administration of justice. It is fair to state that for some members of the public, the reinstatement of a convicted felon under any circumstances will be viewed as inappropriate and inexplicable and will undermine their confidence in the administration of justice. We believe, however, that any reasonable member of the public who is conversant with the facts of the instant case would recognize that reinstatement of this petitioner is warranted and appropriate.
The crimes for which the petitioner was convicted occurred more than a quarter-century ago. In the intervening years, the petitioner has demonstrated his sincere remorse, has undertaken responsible employment, has earned a very positive reputation in the community, and has taken steps to educate himself in current developments in the law. While there are some crimes which are so heinous and unforgivable that an individual ought to be struck from the roll of attorneys in indelible ink, the crimes at issue here - serious as they undoubtedly are - do not preclude reinstatement.
For all the foregoing reasons, we find that the petitioner has established "by clear and convincing evidence that he or she is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law." See Part Six, Section IV, Paragraph 13(J)(1) of the Rules of the Supreme Court. We therefore recommend to the Virginia Supreme Court that the petition for reinstatement be GRANTED.
Pursuant to Part Six, Section IV, Paragraph 13(J)(2) of the Rules of the Supreme Court, this Board has the authority to require that an individual recommended for reinstatement "obtain and maintain a professional liability insurance policy issued by a company authorized to write such insurance in Virginia at the cost of the Attorney in an amount and for such term as are set by the Board." We find that the petitioner, as a condition of reinstatement, should obtain and maintain a professional liability insurance policy issued by a company authorized to write such insurance in Virginia in an amount of $1,000,000 (one million dollars).
As required by Paragraph 13(K)(10)(e) of the Rules of Court, Part Six, Section IV, the Board finds the cost of this proceeding to be as follows:
Copying $ 1,211.35
Transcripts/court reporter $ 719.80
Mailing of notice of hearing $ 1335.42
Administrative fee $ 750.00
Total $ 4,016.57
It is ORDERED that the Clerk of the Disciplinary System forward this Order of Recommendation and the record to the Virginia Supreme Court for its consideration and disposition.
It is FURTHERED ORDERED that the Clerk of the Disciplinary System forward an attested copy of this Order of Recommendation by certified mail, return receipt requested, to the Petitioner at his address of record with the Virginia State Bar, Apartment 31, 9610 Sherwood Place, Norfolk, Virginia 23503, to the petitioner's attorney, Paul E. Turner, Jr., at his address of record, 10231 Warwick Boulevard, Newport News, Virginia 23601, and shall deliver the same, by hand, to Charlotte P. Hodges, Assistant Bar Counsel, Virginia State Bar, Eighth and Main Building, 707 East Main Street, Suite 1500, Richmond, Virginia, 23219-2803.
ENTERED, this First day of March 2002.
THE VIRGINIA STATE BAR DISCIPLINARY BOARD
Randy Ira Bellows, Second Vice Chairman
1. There is no dispute in the instant matter that the petitioner has met the requirements concerning the Multistate Professional Responsibility Examination and that the defendant neither owes money to the Clients' Protection Fund nor to the Bar.
2. One of those letters was from an individual who indicated that he knew the petitioner both before and at the time of the loss of his license in 1976 and had a very negative view of him based on the difficulty which the letter writer experienced in trying to collect a lawful debt and what he viewed as the petitioner's "cavalier and callous disregard of the rights of others...." Although the conduct in question occurred 30 years earlier, the letter writer stated that he did not believe that the petitioner, "short of proof of having heard and heeded a voice from a burning bush, will have changed, especially if rearmed with a law license." Bar counsel relied upon this letter but did not call the letter writer as a witness. The petitioner provided testimony in rebuttal to the letter.
3. The Board recognizes that, under the rules now governing the reinstatement of attorneys, a petitioner who has been approved for reinstatement by the Court must take and pass the written portion of the Virginia State Bar Examination as a condition precedent to his reinstatement. The Board considered the impact of this requirement on the Hiss requirement of "current proficiency." We concluded that it has no impact at all on our obligation to evaluate and make a recommendation concerning the petitioner's "current proficiency" as of today. The Hiss factors are not prospective. Either the petitioner is currently proficient in the law or he is not. We cannot avoid reaching a judgment on this matter because we know that, at some future point, the petitioner will have to take the Bar exam prior to reinstatement. If the Bar exam requirement preceded our evaluation of current proficiency, we would of course accord it great, if not dispositive, weight. But the Bar exam requirement only arises after this Board has made its recommendation and after the Supreme Court has acted on that recommendation. Thus, other than to acknowledge the obvious fact that the Bar exam requirement does provide an additional measure of assurance of competency to all concerned, it plays no role in our assessment of the Hiss factor of "current proficiency."
4. This is an appropriate place to note that the petitioner was convicted of driving under the influence of alcohol in 1988. (He also had a 1987 charge of driving under the influence, which was reduced to reckless driving, and a 1998 charge of driving under the influence, which was dismissed.) If the 1988 DUI conviction had been more recent, we would have serious concerns that there was a current underlying drinking problem that ought to be considered in determining whether the petitioner should be reinstated. However, there was no evidence presented to suggest that the petitioner has a current problem with alcohol.