Q - Judicial Clemency and Reinstatement in the Practice of Law

Judicial clemency and reinstatement Problem Areas in Legal Ethics Arellano University School of Law – Arellano Law Foundation 2015-2016

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Forms of clemency • Reinstatement • Commutation • Lifting of disqualification

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Presumption should be against readmission • “[B]ecause the purpose of lawyer discipline is not punishment, disbarred attorneys may be readmitted to practice. Nevertheless, the ABA believes that the presumption should be against readmission.“ • We agreed with this presumption because "[t]he purpose behind the presumption is protection of the public. This reflects the purpose of the disciplinary process: to protect the public, not to punish the lawyer.“ - In the reinstatement matter involving Wiederholt, 295 P.3d 396 (2013)

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Feeling of sympathy or pity is not material • As a final word, while the Court sympathizes with the respondent's unfortunate physical condition, we stress that in considering his application for reinstatement to the practice of law, the duty of the Court is to determine whether he has established moral reformation and rehabilitation, disregarding its feeling of sympathy or pity. - Que v. Atty. Anastacio E. Revilla, Jr.A.C. No.7054 November 11, 2014

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Basic inquiry in a petition for reinstatement • “The basic inquiry in a petition for reinstatement to the practice of law is whether the lawyer has sufficiently rehabilitated himself or herself in conduct and character. Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court. • The Court will take into consideration his or her character and standing prior to the disbarment, the nature and character of the charge/s for which he or she was disbarred, his or her conduct subsequent to the disbarment, and the time that has elapsed in between the disbarment and the application for reinstatement.” - Re: Petition for reinstatement of Rolando S. Torres as a member of the Philippine Bar, A.C. No. 5161, August 25, 2015

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Ultimately the question is whether the applicant will again engage in unprofessional conduct • "The concept of rehabilitation cannot be framed around a set of specific principles but will vary depending on the particular facts of a given case. Rehabilitation, ultimately, is demonstrated by a course of conduct that enables the Court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct.“ - In Re Arrotta, 96 P.3d 213 (Ariz. 2004)

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• The major consideration in reinstatement proceedings is whether the disbarred attorney has shown that those weaknesses which produced the earlier misconduct have been corrected.- In Re Arrotta, 96 P.3d 213 (Ariz. 2004)

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• Because a petitioner for reinstatement must demonstrate moral fitness and good character sufficient to be trusted again, the petitioner must make a showing of these characteristics that overcome[s] the court's former adverse judgment on the petitioner's character.- In the reinstatement matter involving Wiederholt, 295 P.3d 396 (2013)

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Special power comes heightened moral requirements • Two points about good moral character underlie this discussion. First, the court recognized that a lawyer's special place in society gives the lawyer special power but with that special power comes heightened moral requirements. Second, the court applied this heightened moral character to itself.- Scott DeVito, Justice and the Felonious Attorney, 48 Santa Clara L. Rev. 155 (2008).

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Burden of proving good moral character • When applicants seek admission to the bar, they have placed their character at issue. Therefore, the applicant bears the burden of producing information proving good moral character. - Mitchell

Simon , Nick Smith and Nicole Negowetti

• The lawyer has to demonstrate and prove by clear and convincing evidence that he or she is again worthy of membership in the Bar. - Re: Petition for reinstatement of Rolando S. Torres as a member of the Philippine Bar, A.C. No. 5161, August 25, 2015

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Seriousness of misconduct and rehabilitation • The Court was guided by the principle that “the more serious the misconduct, the greater the showing of rehabilitation that will be required. . . . [and] in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make.”In re Dortch, 860 A.2d 346 (D.C. 2004)

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Remorse and rehabilitation • Once an applicant’s conduct raises an issue of fitness to practice law, especially if prior misconduct involved unlawful acts, he or she may be obliged to demonstrate rehabilitation. One significant factor in determinations of rehabilitation and fitness is whether the applicant expresses and demonstrates remorse.

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Two-part inquiry • When an applicant previously convicted of a serious crime applies for admission to the [] Bar, the court conducts a two-part inquiry. First, the court determines whether the applicant has proven “complete rehabilitation from the character deficits that led to the commission of the crime.” • If the applicant meets this prerequisite, the court must then decide whether the applicant “presently possesses good moral character.” - In re Hamm, 123 P.3d 652, 662 (Ariz. 2005)

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Proving/establishing rehabilitation • To prove rehabilitation, the [applicant] must “identify the weakness that caused him to engage in criminal misconduct and then demonstrate that he has overcome that weakness.”- In the Matter of the Application of Lee Keller King, 136 P.3d 878 (2006) • Accepting responsibility for past misdeeds constitutes an important element of rehabilitation. In the Matter of a Disbarred Member of the State Bar of Arizona, Richard B. Arrotta, 96 P.3d 213 (2004)

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….. • To establish rehabilitation, [applicant] must show "that he has both (1) accepted responsibility for his past criminal conduct," and "(2) identified and overcome the weakness that led to the unlawful conduct.“ - In the Matter of the Application of Alejandro Lazcano, 222 P.3d 896 (2010) • The Court will take into consideration his or her character and standing prior to the disbarment, the nature and character of the charge/s for which he or she was disbarred, his or her conduct subsequent to the disbarment, and the time that has elapsed in between the disbarment and the application for reinstatement.” -

Re: Petition for reinstatement of Rolando S. Torres as a member of the Philippine Bar, A.C. No. 5161, August 25, 2015

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….. • If the applicant proves he or she is rehabilitated, the court must then evaluate his or her present moral character because “showing rehabilitation from criminal conduct does not, in itself, establish good moral character.” In doing so, the court considers past misconduct to “determine what past bad acts reveal about an applicant’s current character.”- In re King: Is rehabilitation from serious crimes possible? Suzanne Diaz, ARIZONA LAW REVIEW [VOL. 48:669] 2006

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….. • Rehabilitation is demonstrated by a course of conduct that enables the court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct. - In Re Arrotta, 96 P.3d 213 (Ariz. 2004)

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Not enough to establish rehabilitation • While Petitioner was "vouched for" by several long standing members of the Bar, and a former Supreme Court Justice, even impressive character testimonials, by themselves, are not enough to establish a disbarred lawyer's rehabilitation. • In re Menna, [47 Cal.Rptr.2d at 9,] 905 P.2d at 951. Indeed, of more significance to this matter is the fact that all of Petitioner's witnesses knew little or nothing about how he used to practice law or why he was disbarred, which suggests Petitioner lacks insight into the significance to others of his misconduct. In re: Wiederholt, 89 P.3d 771 (2004)

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….. • "Merely showing that [an individual] is now living and doing those things he ... should have done throughout life, although necessary to prove rehabilitation," is not sufficient to meet the applicant's burden. In re J.J.T.,761 So.2d 1094, 1096 (Fla.2000) (citation omitted). • In addition, he must bring forth clear and convincing evidence showing the positive actions he has taken to overcome the weaknesses that led to his disbarment.

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Positive actions to be taken to overcome the weaknesses • he secured employment; • to personal obligations since his disbarment, including making restitution; • participated in community activities; and • became involved in his church. • sought professional psychiatric help to overcome the weaknesses that led to his disbarment and, at the time of his reapplication, was continuing to receive therapy; • by participation in community or charitable organizations, specialized instruction or education, counseling, or other similar evidence.

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"Pier factors" (1) the petitioner's present moral fitness; (2) the petitioner's acceptance of wrongdoing with sincerity and honesty;

(3) the extent of the petitioner's rehabilitation; (4) the nature and seriousness of the original misconduct; (5) the petitioner's conduct following discipline; (6) the time elapsed since the original discipline; (7) the petitioner's character, maturity, and experience at the time of discipline and at present; (8) the petitioner's current competency and qualifications to practice law; (9) restitution; and (10) the proof that the petitioner's return to the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest. - In re Pier, 561 N.W.2d 297, 300 (S.D.1997)

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2 concepts of moral character • A person's moral character can be judged at both the level of an individual and in the context of group membership. - Scott DeVito, Justice and the Felonious Attorney, 48 Santa Clara L. Rev. 155 (2008).

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Reinstatements to the legal profession were allowed under the following criteria 1. the person appreciates the significance of his dereliction and he has

assured the Court that he now possesses the requisite probity and integrity necessary to guarantee that he is worthy to be restored to the practice of law

2. the time that has elapsed between disbarment and the application for reinstatement, 3. his good conduct and honorable dealing subsequent to his disbarment,

4. his active involvement in civic, educational, and religious organizations 5. the favorable indorsement of the Integrated Bar of the Philippines, as well as the local government officials and citizens of his community. 6. the pleas of his mother and wife for the sake and the future of his family. – Tan v. Sabandal, B.M. No. 44 February 10, 1989

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Cont… • Evidence of reformation is required before applicant is entitled to reinstatement, notwithstanding the attorney has received a pardon following his conviction, and the requirements of reinstatement had been held to be the same as for original admission to the bar, except that the court may require a greater degree of proof than in an original evidence. • The decisive question on an application for reinstatement is whether applicant is 'of good moral character‘. – In re:

Vailoces, A.M. No. 439 September 30, 1982

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Court lays down the following guidelines in resolving requests for judicial clemency 1. There must be proof of remorse and reformation. These shall include but should not be limited to certifications or testimonials of the officer(s) or chapter(s) of the Integrated Bar of the Philippines, judges or judges associations and prominent members of the community with proven integrity and probity. A subsequent finding of guilt in an administrative case for the same or similar misconduct will give rise to a strong presumption of non-reformation. 2. Sufficient time must have lapsed from the imposition of the penalty1 to ensure a period of reformation.

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Cont… 3. The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. 4. There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or contribution to legal scholarship and the development of the legal system or administrative and other relevant skills), as well as potential for public service. 5. There must be other relevant factors and circumstances that may justify clemency. – Re: Letter of Judge Diaz, A.M. No.

07-7-17-SC September 19, 2007

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Absolute and unconditional pardon • Thereafter, complainant in the criminal case, instituted before this Court disbarment proceedings against petitioner. The same culminated in his disbarment on April 12, 1961. • On December 27, 1967, the President of the Philippines granted petitioner "absolute and unconditional pardon" and restored him "to full civil and political rights. • True it is that the plenary pardon extended to him by the President does not of itself warrant his reinstatement.- In re:

Vailoces, A.M. No. 439 September 30, 1982

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Effects of pardon • "When proceedings to strike on attorney’s name from the rolls are founded on, and depend alone, on a statute making the fact of a conviction for a felony ground for disbarment, it has been held that a pardon operates to wipe out the conviction and is a bar to any proceeding for the disbarment of the attorney after the pardon has been granted.“ In re:

Disbarment proceedings against Atty. Gutierrez, A.C. No. L363. July 31, 1962 • “A pardon reaches both the punishment prescribed for the

offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he had never committed the offense.

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Effect of conditional pardon • The fact that the respondent was extended conditional pardon by the Chief Executive is of no moment. Such conditional pardon merely partially relieved him of the penal consequences of his act, but did not operate as a bar to his disbarment, especially so when he is being disbarred on the ground of professional misconduct for which he had been convicted by final judgment. In re: Atty. Jose Avanceña, A.C.

No. 407 August 15, 1967

• Conditional pardon merely remitted the unexecuted portion of his term. It does not reach the offense itself. - In re:

Disbarment proceedings against Atty. Gutierrez, A.C. No. L363. July 31, 1962

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Pardon granted before conviction • “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. • If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; • If granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”- In re: Disbarment proceedings against Atty.

Gutierrez, A.C. No. L-363. July 31, 1962

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Thank you for your attention!!

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