Released for Publication February 20, 2014.
John D. Minton, Jr., CHIEF JUSTICE. All sitting. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Keller, J., concurs in result only.
OPINION AND ORDER
John D. Minton, Jr., CHIEF JUSTICE
Movant and Applicant, David William Doan, KBA Member No. 81814, bar roster address 46 Madonna Lane, Cold Springs, Kentucky 41076, was admitted to the Kentucky Bar in October 1986. In 1992, he moved to resign from the Kentucky Bar Association under terms of disbarment. This Court granted the motion and ordered Doan disbarred until such time as this Court entered an order reinstating his membership in the Kentucky Bar Association.
See Doan v. Kentucky Bar Ass'n, 842 S.W.2d 869, 870 (Ky. 1992).
Doan has applied for reinstatement under SCR 3.510. The Character and Fitness Committee recommended approval of his application for reinstatement, but the Board of Governors recommended disapproval of his application. Doan has now petitioned this Court to adopt the recommendation of the Character and Fitness Committee, and the Office of Bar Counsel joins this request. This Court instead adopts the recommendation of the Board of Governors.
I. Factual Background
Doan withdrew from the Kentucky Bar Association under terms of disbarment to resolve a series of disciplinary actions involving substantial misconduct, including misrepresenting facts to a court, fabricating a document purporting to release his clients' claims, forging judge's signature on a document purporting to vacate a conviction as part of a scheme to convince the client that an appeal had been successful, practicing law in a jurisdiction where he was not licensed, and misappropriating the funds of multiple clients.
Doan's misconduct and the resulting disciplinary charges against him were described in greater detail by this Court as follows:
a) In litigation pending before the Pendleton Circuit Court and matters before the Pendleton District Court, Probate Division, involving his clients, John and Lola Bennett and their minor daughter, [Doan] failed to represent his clients competently and diligently in violation of SCR 3.130-1.1 and 1.3 (made applicable to him by SCR 3.130 as effective January 1, 1990), failed to keep his clients informed of the status of their suit to the extent necessary to permit them to make informed decisions as is required by SCR 3.130-1.4(a) and (b), made material misrepresentations of fact to the court, which is proscribed by SCR 3.130-3.3(a)(1), and in violation of SCR 3.130-3.3(a)(3), tendered to the court a fabricated document purporting to release his clients' claims, which document was never executed by his clients.
b) In representing a client in an appeal taken from the Pendleton District Court, Commonwealth of Kentucky v. McNees, 91-T-1100, [Doan] failed to perfect the appeal in violation of SCR 3.130-1.3, which requires an attorney to act with reasonable diligence in representing a client. When the appeal was dismissed, [Doan] fabricated an order bearing a facsimile of the judge's signature purporting to vacate his client's conviction of a traffic offense, and falsely represented to his client that the appeal had been successful. [Doan's] acts were in violation of SCR 3.130-8.3(b) and (c).
c) [Doan] was employed briefly in 1992 by a corporation in Cincinnati, Ohio. [Doan] falsely represented to his employer that he was seeking admission to the practice of law in Ohio, and that he was permitted to draft and notarize legal instruments for execution and recording in Ohio. [Doan] drafted and notarized such instruments in violation of SCR 3.130-5.5(a) which provides that a lawyer shall not practice law in a jurisdiction where such practice is not authorized, and of SCR 3.130-8.3(c), which proscribes conduct which involves dishonesty, fraud, deceit or misrepresentation.
d) [Doan] represented the interests of various claimants in negotiating a settlement of insurance benefits due as a result of a fatal collision on April 7, 1990, involving Samual Teegarden, deceased, and Charles R. Teegarden, Jr. Several checks were issued by the insurance carrier
to [Doan] and his clients. [Doan] negotiated the checks without his clients' knowledge or consent and misappropriated the funds to his own use. [Doan's] conduct violated SCR 3.130-8.3(b) which provides that it is professional misconduct for a lawyer to commit a criminal act which reflects adversely upon his honesty, trustworthiness or fitness as a lawyer in other respects, and SCR 3.130-8.3(c) which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. [Doan] has made restitution to the Teegardens in the amount of $18,000.
e) [Doan] represented David D. Rice in negotiations for settlement of an insurance claim in 1990. [Doan] received the settlement proceeds and negotiated the check without his client's signature, knowledge or consent. [Doan] gave his client a check for $28,050 drawn on his escrow account in payment of the client's portion of the settlement. The check was dishonored by the drawee bank, and a post-dated replacement check dated February 2, 1991 was likewise dishonored. When the client requested a complete accounting of the insurance settlement and a copy of his file, [Doan] failed to comply. [Doan] acknowledges that his conduct is in violation of SCR 3.130-1.15(a), (b) and (c).
f) [Doan] represented Ella Mae Herron individually and as executrix of the estate of her husband in the settlement of claims arising from his death in a traffic accident which occurred in 1986. [Doan] received a check in partial settlement of the claims made payable to him and his client. [Doan] negotiated the check without his client's knowledge or consent and misappropriated the funds to his own use. [Doan] acknowledges that his conduct was in violation of DR 1-102(A)(3), (4) and (6) of the Code of Professional Responsibility (made applicable to him by SCR 3.130 as effective until December 31, 1989). DR 1-102(A)(3), (4) and (6) prohibit dishonesty, fraud, deceit, and misrepresentation by a lawyer, and makes it professional misconduct by a lawyer to engage in illegal conduct involving moral turpitude or other conduct which reflects adversely upon his fitness to practice. [Doan] further acknowledges that his failure to treat his client's funds appropriately is in violation of DR 9-102(A) and (B) which require prompt notice of receipt to the client and prohibit commingling of client funds with those of an attorney.
Doan, 842 S.W.2d at 869-70.
Doan admits this conduct would result in his permanent disbarment today. At the time, however, disbarment was not necessarily permanent, and a disbarred lawyer was eligible to seek reinstatement after a period of five years. See SCR 3.520 (1998). In essence, disbarment operated as a period of suspension, after which the lawyer could seek reinstatement. Now, disbarment is permanent, though suspension for a definite time is also available as a sanction. See SCR 3.380. Because disbarments ordered before 1998 were not, and could not be, ordered to be permanent, this Court has allowed lawyers subjected to such orders to seek reinstatement after five years. See, e.g., Hubbard v. Kentucky Bar Ass'n, 66 S.W.3d 684, 689 (Ky. 2001). In fact, Doan's disciplinary order specifically anticipated that he would be able to apply for reinstatement after five years but stated that he could only be reinstated by this Court's order. Before 1998, disbarment reinstatements were processed under SCR 3.520, which has since
been deleted from the rules. Such reinstatement applications are now processed under SCR 3.510, with the disbarment being treated as a five-year suspension. See Kentucky Bar Ass'n v. Wake, 36 S.W.3d 760 (Ky. 2001).
The process under SCR 3.510 is similar to that under SCR 3.520, at least with respect to suspensions for more than five years. Under SCR 3.510, if " the period of suspension has prevailed for more than five ... years," the lawyer is required to file an application for reinstatement, which is then referred to the Character and Fitness Committee. SCR 3.510(4). The Committee is to investigate the lawyer's fitness to practice law and make a recommendation concerning reinstatement, Id.; SCR 2.300. The Committee's recommendation is then reviewed by the Board of Governors. SCR 3.510(4). If the Committee and Board agree to recommend reinstatement, then the application is referred to the Board of Bar Examiners, which administers a shortened version of the bar examination under SCR 3.500(3). " If the Applicant successfully completes the examination, the Court may, at its discretion, enter an order reinstating the suspended member to the practice of law. However, if the Applicant fails to pass the examination, the Court shall enter an order denying the application." SCR 3.510(4).
When Doan filed his application for reinstatement, the Character and Fitness Committee recommended approval of the application (with several conditions, including passage of the examination required by SCR 3.510(4) and 3.500(3)), but the Board of Governors recommended disapproval of the application. Because those two bodies did not concur, Doan has not yet taken the examination required by SCR 3.510(4) and 3.500(3).
The substantive question before this Court, then, is that upon which the Board and Committee could not agree, namely, whether Doan's application for reinstatement should be approved. More specifically, since Doan has not yet taken the limited bar examination prescribed by SCR 3.510, the question is whether he should be conditionally reinstated depending on whether he passes the prescribed examination. In reaching a decision on this question, the Court looks at the record developed below and the recommendations of the Committee and the Board.
II. Proceedings before the Character and Fitness Committee
In its investigation and recommendation, the Committee is required to assess whether " the applicant ... possesses the requisite character, fitness and moral qualification for re-admission to the practice of law," which must be proved by clear and convincing evidence. SCR 2.300(6). In reaching that decision, the Committee is to consider:
(a) Whether the applicant has presented clear and convincing evidence that he/she has complied with every term of the order of suspension or disbarment.
(b) Whether the applicant has presented clear and convincing evidence that his/her conduct while under suspension shows that he/she is worthy of the trust and confidence of the public.
(c) Whether the applicant has presented clear and convincing evidence that he/she possesses sufficient professional capabilities to serve the public as a lawyer.
(d) Whether the applicant has presented clear and convincing evidence that he/she presently exhibits good moral character.
(e) Whether the applicant has presented clear and convincing evidence that he/she appreciates the wrongfulness of his/her prior misconduct, that he/she has manifest contrition for his/her prior professional misconduct, and has rehabilitated himself/herself from past derelictions.
Id. " Failure to meet any of these criteria may constitute a sufficient basis for denial of a petitioner's ...