explaining that, in the context of our consideration of a petition to reinstate an annulled law license “the word ‘rehabilitation’ means a course of conduct since disbarment which leads the Court to conclude that the public is adequately protected.”
How later courts described this case
- explaining that, in the context of our consideration of a petition to reinstate an annulled law license “the word ‘rehabilitation’ means a course of conduct since disbarment which leads the Court to conclude that the public is adequately protected.”
- noting necessity of looking to "the nature of the original offense for which the petitioner was disbarred"
- “The criteria of character, maturity, and experience are basically designed to permit forgiveness of a young man who has been stupid in his youth and can demonstrate that over the course of years he has become wiser and stronger.”
Written by the judges who cited it.
The opinion
*89 HARSHBARGER, Justice,
concurring.
I perceive the most important function of this Court to be the imposition of the rule of law between authority and those upon whom authority is impressed, to remove every aspect of ad hominem application of constraints upon freedom or use of property, to eliminate subjective judgments promoted by prejudice. *
And the sense of our original majority opinion that has been withdrawn was to set a clear guide for readmission to practice law, by a rule that readmitted persons disbarred who had continued their lives for five years without further default, after paying all penalties for any crime they had committed that resulted in disbarment; or after remedying whatever personal deficiency caused behavior for which they were disbarred.
It was a sensible rule — as sensible as any that I have seen laid down by any other court — in an area wherein every court has had great difficulty finding its way.
Now, with this opinion, readmission to practice is tuned to rehabilitation — an element in Rule 31 but not in Rule 28 which was the original, long-standing guide. The process is opened to prejudiced judgments of a most subjective nature because no one knows what rehabilitation is, in this context; and therefore its existence is nearly impossible of any kind of proof. One judge may believe that hours of work in good causes prove rehabilitation. Another may believe that helping in the soup line in a mission, for example, is proof of rehabilitation. But the applicant may have done the same work before disbarment. Should he then, in the process of demonstrating “rehabilitation”, work twice as long? Should one prove rehabilitation by joining the Civitan Club in addition to the Kiwanis? Should one have a religious rebirth? How does one prove he is no longer untrustworthy? Especially if he maintains, as has he the right, that he never was untrustworthy?
One might suppose that considering the tenor of the revised decision and of the dissents, that a lawyer, scarred by disbarment might by, say, a heroic, painful and disfiguring sacrifice to medical experimentation, gain a quicker rehabilitation! I would vote that he stay out five years, no matter what; and that all others return in five years, if their behavior was shown law-abiding in that time.
To say that my reasoning is simply a mask for reluctance to do a difficult part of judging — that my insistence upon a provable standard for behavior that would entitle a disbarred lawyer to practice again is an avoidance of responsibility to make the subjective judgment necessary — simply turns the problem into the solution. Because the difficulty of the task — the difficulty in finding strands of logic to which to attach a reasoned decision about what one must do to regain a license to practice law, proves the ultimate subjectivity that I decry.
Such subjective judgments are simply too fraught with danger to the rule of law.
I am not going to write about the time — 5 years — that the Court heretofore has determined to be the period required to be spent in disbarment. The rule that one may reapply after five years has been in our books since 1972. It may be that the time period should be ten years for those convicted of a felony, and five for those disbarred because of professional misconduct but for which there was no criminal conviction.
Neither shall I dwell upon the overlays of guilt by association that seem to touch this particular case, except to wonder whether if Bernard Smith had not been in polities connected with a corrupt state administration, he would have received the treatment by our Ethics Committee and the press and this Court, that he has.
I must, however, comment about a paragraph in the Bar’s petition for rehearing that prompted withdrawal of our original opinion and substitution for it of this one:
The [original] opinion ... in fact endangers the public, hampers the operation of the Legal Ethics Committee, outrages the public, embarrasses the Bar, and disre *90 gards the standards of honor and integrity which this court has set for the profession.
This would seem an importuning of the Court to bow to public clamor, which would violate Canon 3 A(l) of the Judicial Code of Ethics:
A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.
I can report that none of my brethren was affected by the Bar’s plea in this regard. We were responding, each in our own way, to partisan interests, public clamor, and rear of criticism long before the original opinion in this case was even filed! The Bar, I fear*, would have “Justice” lay down her scales and make her decisions based upon comments made in newspaper editorial pages.
One would hope never to be a subscriber to the judging philosophy of a circuit judge before whom I practiced for many years, who once stated that if a man had a reputation for being an "SOB outside my court, he will get treated as an SOB in my court.”