Petition — Kirven v. Committee on Character & Fitness of the South Carolina Supreme Court

\Gupreme Court, UY

EILED

BEB WK 1980

JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. €971228

IN THE MATTER OF: ROGERS W. KIRVEN

PETITION FOR WRIT OF CERTIORARI TO

THE SOUTH CAROLINA SUPREME COURT

Randall M. Chastain

423 Waccamaw Avenue

Columbia, South Carolina 29205

(803) 799-6889

Edward E. Saleeby

Martin S. Driggers

Post Office Box 519

Hartsville, South Carolina 29550

(803) 332-1531

Attorneys for Petitioner

ESSE Se

| IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

IN THE MATTER OF: ROGERS W. KIRVEN

PETITION FOR WRIT OF CERTIORARI TO

THE SOUTH CAROLINA SUPREME COURT

The Petitioner, Rogers W. Kirven, respectfully prays

that a writ of certiorari issue to review the judgment and

order of the Supreme Court of the State of South Carolina

entered in this proceeding on September 14, 1979, followed

by a denial of Petition for Rehearing and Reconsideration

dated October 10, 1979.

II. Order of the South Carolina Supreme

Page Court denying the Petition of Rogers W.

ne ss ai cde Sea 1 Kirven for Reinstatement to the Practice

US he a 2 of Law, dated September 14, 1979.......... 10a

ie cries lic css ona, ook 2 Appendix B

Statutory and constitutional provisions involved .... 3 Order of the South Carolina Supreme Court

aes sacri actooe Reseach poe A enn Ce 3 denying the Petition for Rehearing and

Reasons for granting the writ ..................... 5 | Reconsideration of Petition for Reinstate-

I. The conduct of the Committee on Character ment, dated October 10, 1979............... lla

and Fitness in this instance was egregious; Appendix C

such conduct is a matter of grave public con-

cern and is damaging to the ideal of the rule Order Extending Time to File Petition

of | - for Writ of Certiorari in the United States

aw eee eee eee eee eeeee 7 rf eeeee Re tee ap rt S upreme Court, dated January 3, 1980. ee 12a |

II. Review should be granted in this matter ;

Appendix D

because the posture of the lower federal ; BERS Se

courts regarding allegations of deprivation South Carolina Disciplinary Procedure

of Due Process and other Constitutional Oe NT da Snckechn cocks icc, 13a

guarantees in Bar Disciplinary Matters has

been generally that those courts are not |

available to persons seeking redress; this | CITATIONS

places upon the Court a substantial burden |

Ape? : > : ¢ Page

to exercise its unique review function which Cases:

Soe oe Bowen. City of Camb, 378 US. 247,84 8.0,

‘ if NE EE OU 6 ek boca owt cack coca. 8

Alternatively, this Court should exercise its Doe v. Pringle, 550 Fa Boe ae Cir. 1976) .....: 11

sabi be prowsagtiod ceil padesie gad . | ——. : bead cn U.S. 165, 43 S.Ct. 303,

ature c . 4) San 6

give guidance to the states and to the lower | Ex Parte Garland, 4 Wall. 333 (1866) .............. 5

' Federal cour’s on this issue ................ 10 Ginger v. Circuit Court for Wayne County, 372 F.2d

COUR ea ie Sik ke be 13 2k 3 |) ene ew ee eneerinre nt 11

Appendices ! In re Donelan, 257 S.C. 405, 185 S.E.2d 898 (1972).. 6

peas ae ) In re Lempesis, 254 S.C. 284, 175 S.E.2d 234 (1970). 8

I. Report of the Committee on Character and I yee ye: 390 U.S. 344, 88 S.Ct. 1222, 20

Fitness of the South Carolina Supreme 2 117 (1968) oh edd et eo ee ok A Kn ee ee 6

Court, dated June 10, 1979.................. la Johnson ». Avery, 393 U.S. 483, 89 S.Ct. 747, 21

e

Law Students Civil Rights Research Council, Inc.

v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27

sare stirs elec ech api « PEPER ened, Set amie 9

MacKay v. Nesbett, 912 F.2d 846 (9th Cir. 1969)... 11

Mildner v. Gulotta, 405 F.Supp. 182 (E.D.N.Y. 1975)11

Richardson v. McFadden, 563 F.2d 1130

epee be ace cake! PEE OE ee 11

Schware v. Board of Bar Examinars, 353 U.S. 232,

77 S.Ct. 752, 1 L.Ed. 796 (1956).................. 9

Tyler v. Vickery, 517 F.2d 1089 (5th Cir. meee ss... li

Whitfield v. Illinois Board of Law Examiners,

504 F.2d 474 (7th Cir. 1974) .................... 11

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

ap penta oo ia, ght SELLA E Aa 11

Miscellaneous:

South Carolina Supreme Court Disciplinary

WP frst ices etter Ce rae ee 13a

South Carolina Supreme Court Disciplinary

ota. REEL EERE ee 13a-16a

South Carolina Supreme Court Disciplinary

et se eens jeg AE Re OPES Poe at ae l4a

South Carolina Supreme Court Disciplinary

WUE Or sbeinigs SGity ock he l6a

U.S. Constitution Amendment XIV

iv

te eee res ee

OPINION BELOW

The Report of the Committee on Character and Fitness

of the South Carolina Supreme Court dated June 10, 1979

and the Order of the South Carolina Supreme Court

thereupon denying the Petition by Rogers Kirven for

Reinstatement to the Practice of Law dated September 14,

1979 are un-reported and are included in Appendix A to

this Petition. The Order of the Supreme Court denying the

Petition for Rehearing and Reconsideration of Petition for

Reinstatment, dated October 10, 1979, is unreported and

the letter evidencing it is included as Appendix B to this

Petition.

2

JURISDICTION

The denial by the Supreme Court of the State of South

Carolina of the Petition by Rogers W. Kirven for

Rehearing and Reconsideration of his Petition for

Reinstatement, which is sought to be reviewed here, was

filed October 10, 1979. Application for extension to file this

petition for writ of certiorari was submitted to The

Honorable Chief Justice Warren E. Burger as Circuit

Justice for the Fourth Circuit more than ten days prior to

the deadline date. The extension was granted by the Chief

Justice in an Order dated January 3, 1980, which is

included herein as Appendix €. The deadline was thereby

extended until February 7, 1980. This petition is filed on or

before that date.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether the Petitioner was denied due process of law

by the South Carolina Supreme Court acting through the

Committee on Character and Fitness in that the Court and

Committee denied him notice until after his hearing on

reinstatement to active status of the standards by which his

application for such reinstatement would be judged.

2. Whether the Petitioner was denied due process by the

Supreme Court of the State of South Carolina and its

Committee on Character and Fitness in that the Court has

imposed upon-him more stringent requirement than that

imposed upon any other applicant for reinstatement to the

practice of law, the burden thus imposed bearing no

rational relationship to any legitimate state interest.

3. Whether the applicant has been denied due process of

law by the South Carolina Supreme Court and its Commit-

tee on Character and Fitness in that the Court has

subjected him to a standardless decision-making process

which is not in keeping with the written rules describing

3

the means by which reinstatement to the practice of law

may be obtained.

4. Whether the Petitioner has been denied due process of

law by the Supreme Court of the State of South Carolina

and its Committee on Character and Fitness in that it has

effectively subjected him to disbarment by the procedure

which it has accepted regarding his application for

reinstatement following suspension, all without any proof

of wrongdoing additional to that proved in the original

disbarment proceedings, and, indeed, in the face of

uncontradicted proof of rehabilitation on his part.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED .

U.S. Constitution, Amendment XIV:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

South Carolina Supreme Court Rules on Disciplinary

Procedure, Rules 8 and 37-41. (These are reproduced in

Appendix D.)

STATEMENT OF THE CASE

Rogers W. Kirven, Petitioner, was indefinitely

suspended from the practice of law by order of the

Supreme Court of South Carolina dated December 10,

1976. Petitioner was disciplined for commingling aclient’s

funds with his own personal assets and for loaning another

client money and co-signing promissory notes for her. Both

clients were relatively uneducated, one being unable to

read or write.

4

As permitted by Rules 37 through 41 of the South

Carolina Supreme Court on Disciplinary Procedure,

copies of which are attached hereto as Appendix D,

Petitioner made application for reinstatement to the

practice.

In compliance with Rules 37 through 41 Petitioner

submitted twelve (12) character witnesses to the

Committee on Character and Fitness. Petitioner further

offered letters from ten (10) attorneys at law, who knew the

Petitioner and recommended that he be readmitted to the

practice of law. No evidence in opposition to the application

was presented.

On June 20, 1979 the Committee on Character and

Fitness denied Petitioner’s application for reinstatement.

In its report, the Committee stated that the reason for this

recommendation was Petitioner’s failure to prove, by clear

and convincing evidence, that he had “rehabilitated

himself” as required by Rule 38 of the Rules on

Disciplinary Procedure. In all other respects, the

Committee reported that the Petitioner was sufficiently

and adequately qualified for the practice of law in the State

of South Carolina.

The Committee felt that the Petitioner had not shown his

rehabilitation in that he had not demonstrated his specific

ability to deal with poor and uneducated clients. Page 7,

Report of Committee, Appendix A.

When the-Committee produced its report and filed it

with the South Carolina Supreme- Court, Petitioner

immediately objected to it as he is permitted to do by the

Rules and filed his objections as required with the South

Carolina Supreme Court. Among those objections was the

following:

“The Committee on Character and Fitness denied the

Petitioner Due Process of Law by placing an unreasonable

and/or impossible burden of proof upon the Petitioner to prove

he had rehabilitated himself.” (P. 2, Objections and Brief in

jecti to ort of the Committee on

rear Fito filed ro South Carolina Supreme

Court on July 12, 1979.)

Further, although oral argument is not ordinarily

permitted before the South Carolina Supreme Court on

petitions for reinstatement, Petitioner moved to be heard

and his motion was granted. Oral argument, of which no

transcript is available, took place on September 11, 1979.

The South Carolina Supreme Court refused Petitioner’s

attempted reinstatement three days later in its Order of

September 14, 1979.

Petitioner thereafter duly moved for rehearing and

reconsideration of his petition for reinstatement on

September 21, 1979. That motion contained, inter alia, the

following grounds:

“The Rule on Disciplinary Procedure and the general law

cited by the Committee concerning the standard required to

prove ‘rehabilitation’ does not require the additional require-

ment of proof required by the Committee;

“The unwarranted, unauthorized and unprecidented [sic]

additional requirement of proof required by the Committee

operated to deny the Petitioner due process of law.” (Petition

for Rehearing and Reconsideration of Petition for Reinstate-

ment of Rogers W. Kirven in the South Carolina Supreme

Court, September 21, 1979, p. 2) (Emphasis in original.)

The South Carolina Supreme Court denied

reconsideration on October 10, 1979. |

REASONS FOR GRANTING THE WRIT

I. The conduct of the Committee on Character and

Fitness in this instance was egregious; such conduct isa

matter of grave public concern and is damaging to the

ideal of the rule of law.

The decisions of this Court make it eminently clear that

procedural due process is a prequisite in matters of lawyer

discipline. Since Ex parte Garland, 4 Wall. 333 (1866) it

has been clear that the choice of an individual to pursue

6

legal practice is not “a matter of grace and favor bestowed

by the state.” (/d. at 379) Rather, although the state, acting

through its Supreme Court, clearly has the right to set high

standards for admission (and for readmission) to the bar,

once those standards are set they may not be administered

in an arbitrary and capricious fashion. See Douglas v.

Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590(1928); In Re

Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

The South Carolina Disciplinary Rules involved in this

matter appear fair on their face. Thus, they draw a

distinction between the sanction of disbarment and the

sanction of suspension for an indefinite period (see Rule 8;

see.also In Re Donelan, 257 S.C. 405, 185 S.E.2d (1972));

although one may not ever be readmitted to the practice of

law after having been disbarred, the Rules (see Rules 37-

41) make it clear that one who has been suspended may

reapply after the expiration of two years. One so doing

must make a satisfactory showing by clear and convincing

proof that he has rehabilitated himself and that he

regarding the provisions of the Committee report such

argument was in fact granted upon motion in this proceed-

ing.

After receiving the report and any response from the

Petitioner, the Court is empowered by the Rule to “enter

such order as it may deem appropriate .. .” (Rule 41)

Petitioner takes the Position that the Rules, if followed

. accurately, are sufficient to provide necessary due process

7

to a disciplined attorney seeking reinstatement to the

practice of law. However, this willingness is bottomed

upon the assumption that the provision to the recommen-

dation of the Committee on Character and Fitness is

adhered to by that Committee and by the Supreme Court of

the State in its necessary implication that the decision

reached by those bodies will be based on information

presented at the hearing and argued by the Petitioner and

others legitimately before the tribunal in the hearing

process and its adjunct review by the State Supreme Court.

The contrary interpretation, that the South Carolina

Supreme Court might be empowered by Rule 41 to enter

any order it wished regardless of information made

available to it in the hearing process, would be so patently

offensive to the principles of due process that it cannot be

thought to be a possible meaning of the Rule. This is, of

course, the more so since we are taught by Jn Re Ruffalo,

supra, that disbarment proceedings are “of a quasi-

criminal nature” (390 U.S. at 551)so that it is clear that one

seeking reinstatement is seeking vindication of, or entry

into the process of rehabilitation of, his liberty interest in

his good name.

Petitioner maintains that the Committee on Character

and Fitness and the South Carolina Supreme Court have

done one of several things. First, they may have imposed a

new requirement of behavior upo- him at the time of the

hearing, and, indeed, following the hearing for all practical

purposes, of which he theretofore had had no notice so as to

be able to condition his behavior during suspension, let

alone make a case that he had met them, which he might

have been able to do had he known the nature of the proof

he was to be required to make. This itself would deny him

due process; see In Re Ruffalo, supra, where the Court

pointed out that charges against an attorney subject to

initial disciplinary proceedings must be made known to

him fairly at a reasonable time prior to the hearing on the

charges lest the charges themselves become a “trap” (/d.),

8

and Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697,

12 L.Ed.2d 894 (1964), where this Court reversed the South

Carolina Supreme Court when it radically re-interpreted a

criminal statute so as to cover conduct which no one had

theretofore believed it to cover; Petitioner here maintains

that the Committee on Character and Fitness has radically

reinterpreted:a previously existing standard which had to

be met in order to permit reinstatement in a fashion that

was not predictable.

Second, they may have arbitrarily singled out the

Petitioner for differential treatment from all others

similarly situated to him without any articulated basis for

their decision (cf. In Re Lempesis, 254 S.C. 284, 175 S.E.2d

234 (1970), in which a suspended attorney was reinstated

after having made a showing of a nature very similar to

that made by the Petitioner in this case; Lempesis appears

to be the only publicly reported reinstatement decision

ever handed down by the South Carolina Supreme Court

which has contained any discussion of the requirements for

reinstatement).

Third, they may have chosen to impose upon the

Petitioner a more substantial punishment than that

originally deemed appropriate, without any explanation

therefor. This would be the “Catch-22” situation if the

Committee and the Court real ly mean what they have said:

if the Petitioner is supposed to demonstrate rehabilitation

by dealing with poor and ill-educated clients it is difficult

to see how he can do so while he remains under suspension;

if a requirement has been imposed upon him which he

cannot meet without violating the terms of his suspension,

he has effectively been disbarred although his conduct was

not originally found to warrant such a penalty.

If the Committee on Character and Fitness has indeed

taken any one of the foregoing approaches, Petitioner

respectfully submits to this Court that the Committee has

treated him in an egregiously arbitrary fashion, and that

9

the Supreme Court of the State has permitted it to do so. If

this is the case, if the allegations made herein can be

established to the satisfaction of a neutral body (this

Court), then the matter is one of great public significance.

The State in disciplining lawyers should be held to the

highest of due process standards. This is not because

lawyers are entitled to more consideration than are other

people. Quite the contrary. It is because a natural corrolary

to the public of seeing arbitrary action with regard to the

handling of disciplinary matters within the bar would be to

increase the likelihood that members of the public would

feel they stood little chance of proper treatment

themselves. In brief, if a lawyer can’t get fair handling,

how is a lay person to expect decent treatment? As Justices

Black and Douglas put it, the State in disciplinary

proceedings must be held to “proceed according to the most

exacting demands of due process of law.” Law Students

Civil Rights Research Council, Inc. v. Wadmond, 401 U.S.

154, 174 91 S.Ct. 720, 731, 27 L.Ed.2d. 749 (1971) (Black

and Douglas, JJ., dissenting).

Thus, this is not a case which should be viewed as

regrettable if proved but not worthy of this Court’s time.

Indeed, this Court has already in Schware v. Board of Bar

Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796

(1956), pointed out that “even in applying permissible

standards, officers of a state cannot exclude an applicant

when there is no basis for their finding that he fails to meet

these standards, or when their action is invidiously

discriminatory.” (353 U.S. at 232) See also Johnson v.

Avery, 393 U.S. 483, 490 n.11, 89 S.Ct. 747, 751 n.11, 21

L.Ed.2d 718 (1969), where the Court wrote “the power of

the States to control the practice of law cannot be exercised

so as to abrogate federally protected rights.” More directly,

as Mr. Justice Frankfurter put it concurring in Schware,

supra, at 353 U.S. 232, 249, 11 S.Ct. 752, 761, 1 L.Ed.2d

796, 807:

10

To a wide and deep extent, the law depends upon the

disciplined standards of the profession and belief in the

integrity of the courts. We cannot fail to accord such

confidence to the state process, and we must attribute to its

courts the exercise of a fair and not a biased judgment in

passing upon the applications of those seeking entry into the

profession.

But judicial action, even an individual case, may have been

based on avowed considerations that are inadmissible in that

they violate the requirements of due process. Refusal to allow a

man to qualify himself for the profession ona wholly arbitrary

standard or on a consideration that offends the dictates of

reason offends the Due Process Clause.

For this Court not to review the determination of the

Supreme Court of the State of South Carolina would be to

permit Petitioner’s reasonably based allegations that the

Committee on Character and Fitness had manipulated the

standards to be used in determining his fitness for re-

admission to the practice of law, which appear

uncontroverted to have been met on the surface, to stand

unanswered and hence would be to permit reasonable

doubt as to the efficacy of the rule of law in reinstatement

matters in this State to grow in the minds of the lay public

and the bar. Such a posture would not be in keeping with

the public function of this Court.

II. Review Should Be Granted in this matter Because

the Posture of the Lower Federal Courts Regarding

Allegations of. Deprivation of Due Process and other

Constitutional Guarantees in Bar Disciplinary Matters

Has Been Generally That Those Courts Are Not

Available to. Persons Seeking Redress; This Places

Upon This Court a Substantial Burden to Exercise its

Unique Review Function Which is not Present Where

Other Remedial Action in the Federal Court System is

Permissible. Alternatively, This Court Should

Exercise its Review Function to Address the Issue of

the Nature of State Disciplinary Proceedings and Give

11

Guidance to the States and to the Lower Federal

Courts on This Issue.

Briefly put, there is a split of authority among the

federal circuit courts as to whether matters of state bar

discipline may be reviewed by them at all. Several federal

circuits have held that disciplinary action taken by astate

court is a judicial proceeding and that they are without

subject matter jurisdiction to review that action by way of

an ordinary civil rights action, the only remedy for a

person feeling aggrieved by such proceedings being to

petition or appear to this Court. See, e.g., MacKay v.

Nesbett, 412 F.2d 846 (9th Cir. 1969), Doe v. Pringle, 550

F.2d 596 (10th Cir. 1976), and Ginger v. Circuit Court for

Wayne County, 372 F Sd 621 (6th Cir. 1967), cert. den. 387

U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 998 (1967). Arguably

contrary are Whitfield v. Illinois Board of Law Examiners,

504 F.2d 474 (7th Cir. 1974), and Tyler »v. Vickery, 517

F.2d 1089 (5th Cir. 1975), cert. den. 426 U.S. 940, 96 S.Ct.

2660, 49 L.Ed.2d 393 (1976). The position of the Fourth

Circuit is unclear. See Richardson v. McFadden, 563 F.2d

1130 (4th Cir. 1977), in which the issue was avoided in an en

banc decision which resulted in a per curiam opinion with

three concurrences in the result, the concurrences

indicating acceptance of the idea that no jurisdiction

exists.

The issue was not made noticeably clearer by the

summary affirmance by this Court of the judgment in

Mildner v. Gulotta, 405 F. Supp. 182 (E.D.N.Y. 1975), affd

425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). In that

case a three-judge court heard a Civil Rights Act challenge

to the constitutionality of procedures used by the State of

New York to discipline attorneys charged with

professional misconduct. There were three different

actions consolidated, and the three judges produced three

opinions. One judge felt that abstention was proper under

the Younger line of cases (Younger v. Harris, 401 U.S. 37,

12

91 S.Ct. 746, 27 L.Ed.2d 669 (1971)); the second judge

concurred in the result (dismissing the complaints), but on

the merits, holding that New York’s procedures for

discipling its attorneys are constitutional; and the third

judge dissented, reaching the mertis and concluding that

New York’s disciplinary procedure was constitutionally

infirm in denying due process and equal protection to

attorneys affected by it.

The precise effect of the summary affirmance under the

circumstances must be regarded as uncertain, but it is at

least clear that none of the three judges in the three-judge

court seemed to feel that the Court was without subject

matter jurisdiction.

If the lower federal courts are without subject matter

jurisdiction in this area, the pronouncements of this Court

discussed in the first section of this petition, supra, are

particularly apposite: if bar discipline is a matter which

the courts should approach with a definite punctilio, and

this Court is the only place where the actions of the states

may be subjected to federal review, then this Court, it

would seem, should owe a certain responsibility to see to it

that that review is a meaningful one. It should, therefore,

take as-large a number of significant cases in this field as

possible.

If, on the other hand, the state supreme courts and their

various auxiliary bodies are in fact following more nearly

administrative practices than they are pure judicial ones

in carrying: out the disciplinary function, review in this

Court would ordinarily be improper without prior review

in some other judicial proceeding. This case would offer a

useful vehicle for making this distinction, and hence aiding

to resolve confusion in the lower federai courts and in the

state courts at a time when the resolution of that confusion

would aid substantially in the gradual process of restoring

public confidence in the functioning of the bench and bar.

13

CONCLUSION

As the foregoing discussion indicates, the Committee on

Character and Fitness in the instant case has denied

Petitioner due process of law in a manner that is

particularly difficult to police; this Coult would performa -

signal public service by requiring it to adhere to its own

rules. Additionally, review should be granted in this Court

in order to provide guidance as to the nature of State

Disciplinary Proceedings.

For these reasons, Petitioner respectfully urges that a

Writ of Certiorari be issued to review the decision in this

case.

Respectfully submitted,

Randall M. Chastain

423 Waccamaw Avenue

Columbia, South Carolina 29205

(803) 799-6889

Edward E. Saleeby

Martin S. Driggers

Post Office Box 519

Hartsville, South Carolina 29550

(803) 332-1531

Attorneys for Petitioner

==

la

APPENDIX A

The State of South Carolina

In The Supreme Court

In the Matter of:

Rogers W. Kirven,

~~ ae ee

Petitioner. )

REPORT OF THE COMMITTEE ON

CHARACTER AND FITNESS

Rogers W. Kirven was indefinitely suspended from the

- practice of law by Order of the Supreme Court dated

December 10, 1976. In Re Rogers W. Kirven, 267 S.C. 669,

230 S.E.2d 899 (1976). Mr. Kirven has filed a Petition for

Reinstatement to the Bar, and the Committee, pursuant to

Section 40 of the Rule of Disciplinary Procedure, held a

hearing on the Petition on April 26, 1979. The following

members were present: Joseph W. Hudgens, Rembert D.

Parler and Nathaniel L. Barnwell. C. Dexter Powers

disqualified himself and Jeter E. Rhodes was required to

make an appearance elsewhere by direction of the United

States District Court. The Petitioner was present,

represented by his attorneys, Edward E. Saleeby, Esquire,

James C. Cox, Jr., Esquire, and Martin S. Driggers,

Esquire. Testimony of various witnesses and Petitioner

was taken under oath and has been transcribed.

SUMMARY OF TESTIMONY

Twelve witnesses testified in behalf of the Petitioner in

addition to his own participation as a witness. All of the

witnesses expressed the opinion that Petitioner was

2a

qualified to practice law. However, their opinions were

expressed in essentially general terms and were not

supported by examples of specific conduct as evidence of

rehabilitation or by any spectfic indications of rehabilitated

character. The most common expression by the witnesses

was that Petitioner had “mellowed,” become less self-

centered, less “cocky,” and more active in his church.

Coleman Ratteree, a process engineer with a paper mill

in Florence County, testified that he had known Petitioner

for six or seven years. His personal knowledge has been

intimate only since 1975, however, and that basically

through church activities. Both Petitioner and the witness

are elders in Hopewell Presbyterian Church. He testified

that Petitioner has been Clerk of the Session for the past

two and one-half years. The witness has never had an

attorney-client relationship or other business or financial

relationship with Petitioner. He has no knowledge of the

reasons for Petitioner’s Suspension. He testified that

Petitioner had undergone a “tremendous change” but was

not specific beyond the belief that Petitioner has become less

self-centered and less critical of others.

C. Cooper Tedder, Mayor of Florence, testified. He has

known Petitioner for approximately twenty years but had

no business or professional relationship with him before the

suspension. The Mayor, who engages in the real estate

business, now has property of Petitioner listed with him.

That listing is the only business transaction the witness has

had with Petitioner. The witness had a general! knowledge

of the reasons for the Suspension but no knowledge of the

specific conduct which resulted in the suspension. This

witness has seen Petitioner become more “mellow.” He is of

the opinion that Petitioner is desirous of treating people

fairly but cannot support the opinion by any examples of

conduct. He finds Petitioner humble now whereas he was

egotistical before the suspension.

_

3a

William C. Barnes, Sheriff of Florence County, testified.

He has known Petitioner for about twenty years, primarily

in his capacity as a law enforcement officer involved with

Petitioner as he practiced in General Sessions Court. He

always found Petitioner to be fair and that he represented

his client well. He has seena change in Petitioner’s attitude

which he expressed as now less self-centered and less

“cocky.” He testified to no specific instances of conduct

ulustrative of that changed attitude.

H.L. Dargan, Jr., Vice President and Loan Officer of

Peoples Federal Savings and Loan Association, testified.

Mr. Dargan has a law degree but has never practiced law.

Petitioner presently has a loan with the Association which

is current. He testified that he did not know whether there

had been any change in Petitioner’s life or life style. His

understanding of the reasons for Petitioner’s suspension

was that he had co-mingled funds.

Harry Legett Huggins, employed with Conwood Corpor-

ation, a merchant of snuff, chewing tobacco and hotshot

insecticide, testified. He has known Petitioner for over

twenty years as a friend, but Petitioner has never

represented him. He testified that if Petitioner were

reinstated, he would have no hesitation to engage his

services. He and Petitioner now own a tract of land which

they are developing. He testified that Petitioner told him

the reason he was suspended was that he had co-mingled

funds. He knows of no reason why Petitioner should not be

reinstated and does not believe he will co-mingle funds

again. The witness was asked what changes he had noticed

about Petitioner; he testified to none other than Petitioner

“... was hurt when he lost his license.”

John A. McInnes, Jr., a realtor who has handled rental

property and insurance accounts of Petitioner since 1976

and who has been a hunting and fishing companion of

Petitioner, testified. He testified that the suspension of

Petitioner was ego damaging to him, and he does not think

a

4a

# event which led to the suspension (which he understands

be co-mingling of client funds with his own) will reoccur.

However, he does not know whether that is the result of a

change in character or the desire of avoiding the conse-

quences of such conduct.

J.C. Gregg, Clerk of Court for Florence County, testified.

He and Petitioner are members of the same church and

serve on the Board of Session. Petitioner has done no legal

work for him, but he would not have had any hesitation in

employing Petitioner. He thinks Petitioner’s character is

good and knows of no reason why he should not be allowed

to practice law. His understanding of the reason for the

suspension was that Petitioner had co-mingled funds and

did not give security for a loan from a client. His opinion is

that Petitioner was of good character prior to the

suspension but his opinion “may have changed some” as a

result of the suspension. The only basis which the witness

has for a current opinion of good character similar to the

one he held prior to the suspension is that Petitioner is more

regular in church attendance and activities.

Thomas L. Kirby, owner and operator of Kirby’s Gulf

Service in Florence, testified. He has known Petitioner for

approximately twenty years as a customer and friend. His

social contact with Petitioner has been limited — a supper

or “get-together” once or twice a year, golf matches two or

three-times a week. The Petitioner has never represented

him as a lawyer. The only change in Petitioner since the

suspension is that he is a little more humble than he used to

be.

J. Wallace Gregg, a retired Army Warrant Officer,

Veterans Service Officer for Florence County and Wildlife

Commissioner, now a neighboring farmer and fishing

companion of Petitioner, testified. He and Petitioner are

members of the same church. Petitioner once represented

him in a legal matter which resulted in a settlement

whereby the witness obtained money. He testified that he

a

da

told Petitioner to take his fee out of the settlement and he

would give the balance to the church. In response to that,

Petitioner decided to give his fee to the church. The witness

did not testify to any specific instance of rehabilitation but

felt that Petitioner has “mellowed quite a lot since then...

[and] . . . seems more humble than he was at the time

before.” His understanding of the reasons for the suspen-

sion was that Petitioner had co-mingled funds.

John McPherson McKnight, employed at the Florence

Post Office, testified. He has known Petitioner for twenty

years or more, “. . . socially, friendly, neighborly, church.”

Since the suspension he has been associated with Petitioner

at least twice weekly, either socially or at church. He has

never had a professional relationship with Petitioner, nor

has he ever “had any legal work done,” but he feels that

Petitioner is “eminently qualified” to practice law, knows

of no reason why he should not be reinstated and if he is

reinstated he would have no hesitation in using his

services. The witness was asked what changes he had

observed since the suspension. His testimony was that

Petitioner had become more “mellow.” “I have never

known him to be all that egotistical. I’ve heard other people

state but I have noticed a little change, not very much.” But

he does not “. . . think under any circumstances he would

ever co-mingle funds or whatever he did before.”

One member of the Florence Bar, where Petitioner had

practiced, testified in his behalf; that was James C.

McLeod, Jr., Esquire. Mr. McLeod has lived in Florence all

of his life and has been practicing law in Florence since

April 15, 1959. His practice consists primarily of defense

work and litigations and he testified that he had extensive

litigation in which Petitioner was the adversary on the

other side. He has always found Petitioner to be fair,

candid and straightforward. This witness’s sole knowledge

of the reason for suspension of the Petitioner was derived

from the opinion of the Court in Jn Re Rogers W. Kirven,

6a

267 S.C. 669. He feels that the wrong done by Petitioner

as set forth in that opinion will never be repeated. He feels

that the Petitioner should be reinstated. He did not testify

as to any specific matters indicating rehabilitation.

The Petitioner’s wife, Mrs. Janice B. Kirven, testified.

She testified that Petitioner had benefited from the

suspension in that he has had more time to know himself,

other people and his family. It has caused him to “walk

closer to the Lord . . . [and become]... more sensitive of

other people’s feelings and other people.” She has no doubt

that he now knows the proper way to handle client’s funds.

The Petitioner testified in his own behalf. A good portion

of his testimony was related to explanation of the events

which led to his suspension. With respect to rehabilitation,

his testimony was simply that he will never again engage in

any conduct contrary to the Canons or put himself in a

position where such could be interpreted. Other than the

cessation of the practice of law and the commencement of

full time farming and renting real estate and becoming an

officer in his church, the Petitioner did not testify to any

significant changes in his life after the suspension. He

testified that he felt that he had been rehabilitated but gave

no testimony as to any specific situations from which that

could be inferred.

There was no testimony presented to the Committee

concerning the Petitioner’s conduct since the suspension in

the context of dealings with unintelligent and naive persons,

the overreaching of or Sa was a major factor leading to the

suspension. None of the witnesses who testified exprssed any

appreciation for that aspect of the of the reasons for

Petitioner’s suspension but was primarily limited to the

understanding that Petitioner had simply co-mingled

funds, which was perhaps a technical violation of the

Canons but not necessarily wrong.

After the hearing letters from ten members of the Bar,

including the member of the Florence Bar who testified

+.

7a

and Petitioner’s former partner, were received by the

Committee. They are made a part of the record and

submitted to the Court along with this Report.

The foregoing summary of the testimony relates

exclusively to Petitioner’s claim of rehabilitation. The

record supports the other requirements of the Rule with

respect to reinstatement. He has not engaged in the

practice of law since the suspension and he has successfully

completed a re-examination given by the Board of Bar

Examiners.

FINDINGS OF FACT

1. The Petitioner has been indefinitely suspended from

the practice of law. In Re Rogers W. Kirven, 267 S.C. 669,

230 S.E.2d 899 (1976).

2. Two years have expired since the entry of the Order of

indefinite suspension and the filing of the Petition for

Reinstatement.

3. The Petitioner has successfully completed a re-

examination for admission to the Bar given by the Board of

Bar Examiners.

4. Since his suspension the Petitioner has engaged in

farming and real estate rentals for his livelihood; he has

been active in his church and in civic affairs. He has not

engaged in the practice of law.

5. To some extent the Petitioner has become more

humble, more mellow and less self-centered.

6. There is no expressed objection to the reinstatement

of Petitioner by the Bar or anyone else.

CONCLUSIONS

The burden is upon Petitioner to establish that his

character and rehabilitation are such that he is entitled to

be reinstated to the practice of law. It is generally held that

one in the position of Petitioner must meet the following

burden:

8a

He must prove, if he can, after the expiration of a

reasonable length of time, that he appreciates the

significance of his dereliction, that he has lived aconsistent

life of probity and integrity, and that he possesses the good

character necessary to guarantee uprightness and honor in

his professional dealings, and therefore is worthy to be

restored. 7 Am.Jr.2d, Attorneys at Law, §72, p. 93.

It is also generally held that a belief that a disbarred

attorney has been sufficiently punished is not a warrant for

his reinstatement since the purpose of discipline is to

protect the public and the profession. 7 Am.Jur2d,

Attorneys at Law, §71, p. 92.

Under Section 38 of the Rule of Disciplinary Procedure,

the Petitioner must establish by clear and convincing proof

that he has rehabilitated himself.

The testimony presented by and on behalf of Petitioner

consists only of the claim of rehabilitation and general

opinions by the witnesses that they know of no reason why he

should not be reinstated, with the general belief that the

conduct which led to the suspension will not happen again.

The only testimony concerning rehabilitation by the

witnesses was that Petitioner had “mellowed,” “become

more humble,” and “less self-centered.” The Petitioner was

suspended for gross overreaching of uneducated clients

who were unable to intelligently negotiate their own

financial affairs and for the concoction of “highly suspect

transactions within the attorney-client relationship for

personal profit.” None of the witnesses who testified on

behalf of the Petitioner really addressed the issue of

Petitioner's rehabilitation from one who would and did

grossly overreach and improperly deal with the financial

affairs of unintelligent, uneducated and nai ve clients. There

was no testimony or evidence presented to the Committee as

to Petitioner's relationship or conduct with such persons

since the suspension.

9a

The Committee, under the Rule, is required to conduct a

hearing and take evidence concerning Petitioner’s claim of

rehabilitation. §40, Rule of Disciplinary Procedure. That

rehabilitation must be shown by clear and convincing

evidence to be from the grievance for which Petitioner was

suspended. It is the conclusion of the Committee that

Petitioner's conduct and activities since the suspension are

not significantly different from before the suspension. The

bare conclusions of the witnesses do not establish by clear

and convincing evidence that Petitioner has_ been

rehabilitated from the character involved in the dealings

for which Petitioner was suspended.

RECOMMENDATION

It is the recommendation of the Committee that the

Petitioner’s application for reinstatement be denied.

Chairman — Joseph W. Hudgens

Member — Rembert D. Parler

Member — Nathaniel L. Barnwell

June 20, 1979

10a

APPENDIX A

The Supreme Court of South Carolina

ORDER

IN THE MATTER OF: ROGERS W. KIRVEN

After a full and complete study of the record and petition

for reinstatement filed by the above named individual

together with the report of the Committee on Character

and Fitness, it is the order of the Court that the petition for

reinstatement be denied, and

IT IS SO ORDERED.

s/ J. Woodrow Lewis C.J.

s/ Bruce Littlejohn A.J.

s/ J.B. Ness A.J.

s/ Wm. L. Rhodes, Jr. A.J.

s/ George T. Gregory, Jr. A.J.”

Columbia, South Carolina

September 14, 1979

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APPENDIX B

The Supreme Court of South Carolina

October 10, 1979

Edward E. Saleeby, Esquire

Messrs. Saleeby, Cox, Driggers & Bledsoe

P.O. Box 519

Hartsville, South Carolina 29550

Re: In the Matter of Rogers W. Kirven

Dear Mr. Saleeby:

The Court has this day refused your Petition for

Rehearing and Reconsideration of Petition for Reinstate-

ment in the above case in the following order:

“Petition denied.

s/ J. Woodrow Lewis C.J.

s/ Bruce Littlejohn A.J.

s/ J.B. Ness A.J.

s/ Wm. L. Rhodes, Jr. A.J.

s/ George T. Gregory, Jr. Ad.”

Very truly yours,

CLERK

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APPENDIX C

Supreme Court of the United States

No. -559

IN THE MATTER OF

ROGERS W. KIRVEN,

Petitioner

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner,

It Is Ordered that the time for filing a petition for writ of

certiorari in the above-entitled cause be, and the same is

hereby, extended to and including February 7, 1980.

/s/ Warren E. Burger

Chief Justice of the United States

Dated this 3rd day of January, 1980

13a

APPENDIX D

Disciplinary Procedure

8. Effect of Discipline

A. A person disbarred shall never be readmitted to the

practice of law in this state.

B. A person who, having been indefinitely suspended

from the practice of law and reinstated, is thereafter found

guilty of subsequent misconduct shall be permanently

disbarred.

C. A person who, having been publicly reprimanded for

misconduct, is thereafter found guilty of subsequent

misconduct, shall be suspended for an indefinite period

from the office of attorney at law, or permanently

disbarred, depending upon the seriousness of such

misconduct.

D. A person who having received two private

reprimands for misconduct and is thereafter found guilty

of subsequent misconduct shall be publicly reprimanded

or suspended for an indefinite period from office of

attorney at law or permanently disbarred, depending on

the seriousness of such misconduct.

E. A person who, having voluntarily surrendered his

license to practice, may be reinstated in the manner

hereinafter provided, or who, having been suspended for

an indefinite period from the office of attorney at law, may

be reinstated in the manner hereinafter provided.

37. Reinstatement Procedures

No petition for reinstatement to the practice of law shall

be filed within two years after the entry of an order

indefinitely suspending the petitioner from the practice of

law in this state, or within two years after the denial of a

petition for reinstatement filed by such petitioner.

l4a

A petition for reinstatement to the practice of law by an

attorney transferred to disability inactive status shall be in

accordance with paragraph 19 of this Rule as well as the

foregoing provisions.

38. Contents of Petition for Reinstatement

A. Subject to the foregoi ng restrictions, any person who

has been indefinitely suspended from the practice of law or

who is in a disability inactive status and who wishes to be

reinstated may file with the Clerk of this Court his verified

petition and ten copies thereof setting forth:

(1) The date when indefinite suspension or disability in-

active status was ordered, and, if there was a repor-

ted opinion concerning the same, the volume and

page of the official reports of this Court where such

Opinion appears:

(2) The dates upon which any prior petitions for rein-

statement were filed, denied or granted;

(3) The names of all persons and organizations, other

than the petitioner and the Board, who were entitled

under this Rule to receive from the Clerk of this

Court certified copies of the disciplinary order of this

Court resulting in the petitioner’s suspension; or

transfer;

(4) The name of the county in which he resides at the

time of the filing of the petition, and of each county

in which he proposes to maintain an office if rein-

stated;

(5) The facts upon which he relies to establish by clear

and convincing proof that he has rehabilitated him-

self; and

(6) Proof of professional competence and learning in

law, which proof shall include certification by the

Bar examiners of his successful completion of re-

examination for admission to practice.

15a

A. In any Order of reinstatement the Court may direct

that the attorney limit his practice to certain areas of the

law; work under the supervision of another attorney;

require reports at intervals or any other reasonable

requirement that will insure the protection of the public

and the administration of justice.

39. Petition Referred to Committee

on Character and Fitness

The Clerk of this Court shall forward five copies of the

petition for reinstatement to the Committee on Character

and Fitness appointed under the rules of this Court

governing admission of persons to the practice of law in

this state; and such petition shall be deemed to be referred,

without court order, to said Committee. Provided that a

suspended attorney may take the examination for

admission to practice administered within the nine months

prior to the date allowed for his reinstatement petition.

40. Action by Committee on Character and Fitness

The Committee on Character and Fitness shall, with all

convenient dispatch, proceed to hold a hearing or hearings,

take evidence concerning petitioner’s character and his

claim of rehabilitation, and report to this Court the

proceedings had before said Committee, together with the

Committee’s findings of fact and recommendations.

Reasonable notice of all such hearings before the

Committee shall be given to the petitioner or his counsel

and to the President of the local Bar association in the

county or counties in which the petitioner resides and in

which he proposes to maintain an office in the event of his

reinstatement. Such hearings may, in the discretion of the

Committee, be public and shall be public if the petitioner so

requests in writing. Any interested person, any member of

the Bar, and a representative of the South Carolina Bar or

of any local Bar association may appear before the

Committee in support of, or in opposition to, the petition.

16a

41. Committee’s Report to Be Filed;

Procedure Thereupon

The report of the Committee on Character and Fitness,

and six copies of the Committee’s findings of fact and

recommendations, shall be filed in the office of the Clerk of

this Court, who shail thereupon notify petitioner or his

counsel of such filing and shall with such notice enclose a

copy of the Committee’s findings of fact and

recommendations. If the Committee shal] have recom-

mended denial of the petition, the petitioner shall have ten

days from the date of his recei pt of notice thereof from the

Clerk within which to file with the said Clerk objections to

the report and brief in support of such objections; together

with five copies of such objections and brief: but no oral

argument will be heard thereon. Upon consideration of the

Committee’s report and of such objections and brief as may

have been filed by the petitioner concerning the same, the

Court shall enter such order as it may deem appropriate,

and may include in such order such provision for reim-

bursement of the actual and necessary expenses incurred

in connection with the proceedings as shall appear just and

proper.