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In re Wiederholt (06/15/2001) sp-5421
In re Wiederholt (06/15/2001) sp-5421
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the ) Supreme Court No. S-9171
Reinstatement of )
) Alaska Bar Association
JON E. WIEDERHOLT, ) File No. 1999R001
)
) O P I N I O N
Petitioner. )
______________________________) [No. 5421 - June 15, 2001]
Appeal from the Alaska Bar Association
Disciplinary Board.
Appearances: John R. Strachan, Anchorage, for
Petitioner. Mark Woelber and Stephen J. Van Goor, Alaska Bar
Association, Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Disbarred attorney Jon E. Wiederholt seeks review of the
Alaska Bar Association Disciplinary Board's denial of his petition
for reinstatement to the practice of law. Because the board took
all of the relevant factors into account and because the weight of
the evidence supports the board's findings, we affirm the decision
not to reinstate Wiederholt.
II. FACTS AND PROCEEDINGS
On July 8, 1994 this court disbarred Jon E. Wiederholt
from the practice of law for (1) filing a pleading and affidavit
stating that his client's judgment had not been satisfied when he
knew that it had; and (2) forging his client's signature to endorse
a check. [Fn. 1]
After disbarment, Wiederholt worked in the construction
field for approximately one year. More recently he was employed as
a paralegal and contract legal research analyst by six Anchorage-
area attorneys.
On June 22, 1999 Wiederholt filed a petition for
reinstatement pursuant to Alaska Bar Rule 29, claiming that he had
met the terms and conditions of this court's order imposing
disbarment and requesting reinstatement to the practice of law.
[Fn. 2] Wiederholt's petition was heard before the Alaska Bar
Association's Area Hearing Committee in September and October 1999.
[Fn. 3] In February 2000 the Hearing Committee recommended that
Wiederholt's petition be denied because he did not meet his Rule 29
burden of proving (1) that he was morally fit and (2) that his
reinstatement would not be detrimental to the integrity and
standing of the Bar, the administration of justice, and the public
interest. In March 2000 the Alaska Bar Association Disciplinary
Board [Fn. 4] unanimously adopted the findings, conclusions, and
recommendation of the Hearing Committee that Wiederholt not be
reinstated.
Wiederholt appeals.
III. STANDARD OF REVIEW
This is a matter of first impression; no disbarred
attorney has ever petitioned this court for reinstatement.
Consequently, we have never specified what standard of review
governs reinstatement.
To the extent that this case requires the interpretation
of the requirements of the Alaska Bar Rules, it is a question of
law that we review under the independent judgment standard. [Fn. 5]
With regard to the review of the Disciplinary Board's
findings of fact, we view reinstatement as part of attorney
discipline. We therefore employ the same standard used in
reviewing attorney discipline proceedings:
Though this court has the authority, if not
the obligation, to independently review the entire record in
disciplinary proceedings, findings of fact made by the Board are
nonetheless entitled to great weight. The deference owed to such
findings derives from the responsibility to conduct disciplinary
proceedings which this court has delegated to the Bar Association.
Where findings of fact entered by the Board are challenged on
appeal to this court, . . . the respondent attorney bears the
burden of proof in demonstrating that such findings are erroneous.
. . . As a general rule, moreover, we ordinarily will not disturb
findings of fact made upon conflicting evidence. . . . [Fn. 6]
When deciding appropriate punishment, we need not accept
the Disciplinary Board's recommendation but may exercise
independent judgment. [Fn. 7] In exercising our independent
judgment as to the appropriate sanction, we are guided by the
American Bar Association's Standards for Imposing Lawyer Sanctions
(ABA Standards); [Fn. 8] however, we are not constrained by them.
[Fn. 9]
IV. DISCUSSION
A. Requirements for Reinstatement of a Disbarred Attorney
1. Reinstatement in general
a. The presumption against reinstatement
The bar association argues that this court should
recognize a presumption against reinstatement after disbarment.
According to the American Bar Association (ABA), because
the purpose of lawyer discipline is not punishment, disbarred
attorneys may be readmitted [Fn. 10] to practice. Nevertheless,
the ABA believes that the presumption should be against
readmission. [Fn. 11]
Other jurisdictions considering reinstatement matters
have followed the ABA, explicitly recognizing the existence of a
presumption against readmission. [Fn. 12] The Pennsylvania Supreme
Court has even gone so far as to say that disbarred attorneys have
"no basis for an expectation . . . of the right to resume practice
at some future point in time."[Fn. 13]
The 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. [Fn. 14] According
to the South Dakota Supreme Court, a court must "endeavor to make
certain that it does not again put into the hands of an unworthy
petitioner that almost unlimited opportunity to inflict wrongs upon
society possessed by a practicing lawyer."[Fn. 15] Similarly, the
Oregon Supreme Court has stated that "[a]ny significant doubt about
whether an applicant for reinstatement has sustained [his] burden
must be resolved in favor of protecting the public interest by
denying reinstatement."[Fn. 16] Courts have long held that "[a]
court should be slow to disbar, but it should be even slower to
reinstate."[Fn. 17] We agree with and adopt this approach.
Given that both the ABA and a large number of
jurisdictions have acknowledged the existence of a presumption
against reinstatement, it was proper for the board to assume such
a presumption existed. Accordingly, we recognize the presumption
against reinstatement of a disbarred attorney and take this into
account in evaluating Wiederholt's case.
b. The standard for reinstatement
The bar association argues on appeal that in order to
prove that a petitioner has the proper qualifications to be
reinstated to the practice of law, he or she must present
"'overwhelming' proof of reform coupled with 'exemplary' conduct."
The ABA states that "[i]n no event should a lawyer even
be considered for readmission until at least five years after the
effective date of disbarment."[Fn. 18] After that time, the ABA
recommends that a lawyer seeking readmission "show by clear and
convincing evidence"the following: "rehabilitation, compliance
with all applicable discipline or disability orders or rules, and
fitness to practice law."[Fn. 19]
This high level of scrutiny is not unusual; most
jurisdictions impose very high standards on those petitioning for
reinstatement. The major consideration in reinstatement
proceedings is whether the disbarred attorney has shown that those
weaknesses that produced the earlier misconduct have been
corrected. [Fn. 20] Therefore, courts often consider remorse,
rehabilitation, and moral fitness to practice law to be key
elements in the inquiry. [Fn. 21] 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. [Fn. 22]
Accordingly, other jurisdictions have stated that petitioners for
reinstatement should be held to an even higher standard of conduct
than first-time applicants because they have already demonstrated
that they are at risk for unethical conduct. [Fn. 23] The majority
position among courts is that the more culpable the conduct, the
greater the burden for proving one is entitled to reinstatement.
[Fn. 24]
c. The test for reinstatement
Most jurisdictions, including Alaska, have standards for
reinstatement that are similar to the ABA guidelines. [Fn. 25]
Many jurisdictions have further developed fact-intensive, multi-
part tests for determining whether a petitioner meets these
standards. [Fn. 26] The factors most commonly taken into account
include (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 the 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. [Fn. 27]
2. The standard for reinstatement under the Alaska Bar
Rules
a. The requirements of Rule 29
Alaska Bar Rule 29 sets out the standard a disbarred
attorney seeking reinstatement must satisfy:
[T]he Petitioner will have the burden of
demonstrating that (s)he has the moral qualifications, competency,
and knowledge of law required for admission to the practice of law
in this State and that his or her resumption of the practice of law
in . . . the State will not be detrimental to the integrity and
standing of the Bar, or to the administration of justice, or
subversive of the public interest . . . . [Fn. 28]
Thus, an individual seeking reinstatement has the burden of
demonstrating two things: (1) that he or she has the knowledge of
law, competency, and moral qualifications requisite to the practice
of law in this state; and (2) that his or her reinstatement will
not be detrimental to the Alaska Bar, the administration of
justice, or the public interest.
Alaska has no other bar rules addressing the question of
reinstatement by a disbarred attorney. There are also no Alaska
cases that interpret this language. We conclude that the ten
factors distilled in Pier and listed previously [Fn. 29] provide
useful guidance in a reinstatement inquiry.
b. "Clear and convincing evidence"is the proper
standard for the Rule 29(c) criteria for reinstatement.
In making their determinations regarding Wiederholt, the
Area Hearing Committee and the Disciplinary Board stated that an
individual seeking reinstatement must prove that he or she meets
the requirements set out in Rule 29(c)(1) by "clear and convincing
evidence." A review of the ABA standards and cases from other
jurisdictions suggests that the "clear and convincing evidence"
standard is the proper standard of proof in reinstatement cases.
In its Standards, the ABA states that a lawyer seeking
reinstatement or readmission must demonstrate rehabilitation,
compliance with all applicable rules and discipline orders, and
fitness to practice law "by clear and convincing evidence."[Fn.
30] Other jurisdictions have concurred, establishing "clear and
convincing evidence"as the standard of proof that petitioners
seeking reinstatement must satisfy. [Fn. 31] The reasoning of the
Illinois Supreme Court is persuasive:
The purposes underlying both attorney
disciplinary and reinstatement proceedings are to safeguard the
public, maintain the integrity of the profession, and to protect
the administration of justice from reproach. Consistent with those
purposes is the principle that when a disbarred attorney petitions
for reinstatement that person has the burden of introducing clear
and convincing evidence of rehabilitation. [Fn. 32]
We agree with this conclusion and adopt the clear and convincing
evidence standard for proving the Rule 29(c)(1) requirements.
3. The board did not consider impermissible factors in
making its determination in this case.
In the present case, the board considered the factors
explicitly listed in Rule 29: competency, knowledge, moral fitness,
and whether Wiederholt's resumption of the practice of law in the
state will be detrimental to the integrity and standing of the Bar,
or to the administration of justice, or subversive of the public
interest.
The board determined that Wiederholt had satisfied his
burden of demonstrating that he met the competency and knowledge
elements of the Rule 29(c) inquiry. [Fn. 33] However, the board
ruled that Wiederholt had not met his Rule 29 burden of
demonstrating (1) that he was morally fit and (2) that his
resumption of practice would not be detrimental to the bar,
justice, or the public interest.
While Rule 29 establishes moral fitness and lack of
detrimental impact as the requirements for reinstatement, it does
not explicitly state what factors the board may take into account
in determining whether a petitioner has satisfied these
requirements. In making its determination in Wiederholt's case on
both moral fitness and the potential detrimental impact of
Wiederholt's return to practice, the board specifically considered,
among other things, Wiederholt's past conduct, his level of remorse
and acknowledgment of past wrongdoing, and the amount of time that
has passed since his disbarment.
Wiederholt argues that the board's consideration of these
three factors fails to show present unfitness. We disagree.
Weiderholt's past conduct, his level of remorse and acknowledgment
of past wrongdoing, and the amount of time that has passed since
his disbarment are all highly relevant. Moreover, a survey of
reinstatement cases in other jurisdictions with reinstatement rules
similar to Rule 29 indicates that the board acted properly in its
inquiry by considering Wiederholt's past conduct, his level of
remorse, and the length of time that has passed since his
disbarment. Each of these issues is discussed in greater detail
below.
a. Consideration of a petitioner's past conduct
is appropriate.
Wiederholt argues that a petitioner has satisfied his
Rule 29 standard of proof if he or she can demonstrate that he or
she has the moral qualifications, competency, and appropriate
knowledge of law at the time he or she is petitioning for
reinstatement. Therefore, Wiederholt contends that it is
inappropriate for the Disciplinary Board to consider the
petitioner's past moral unfitness, incompetency, or lack of
knowledge when making a reinstatement decision. The bar
association disagrees, believing that a petitioner's past conduct
has a great deal of bearing upon his or her present fitness to
practice law. [Fn. 34]
A petitioner must demonstrate that he or she "has"the
requisite moral qualifications, competency, and knowledge to
practice law in Alaska. [Fn. 35] Wiederholt points to the use of
the present tense of the verb and suggests that the board should be
determining whether a petitioner "has"the requisite qualifications
as of the present time (when the petition is being reviewed) rather
than looking back to and considering the petitioner's earlier
conduct. Wiederholt's argument is unpersuasive. It makes little
sense to consider a disbarred attorney's petition for reinstatement
entirely in a vacuum, ignoring the conduct and attitude that led to
disbarment. Rather, the bar association's argument that
"[d]isbarment conclusively proves lack of moral fitness"at the
time of disbarment and "remains as evidence of lack of moral
fitness later"is supported by the decisions of courts in other
jurisdictions that have explicitly acknowledged that the conduct
that led to the petitioner's disbarment is an important factor to
consider when determining whether the petitioner should be
reinstated. [Fn. 36]
Courts addressing this issue cover a broad spectrum. At
one extreme, the Supreme Court of Pennsylvania goes so far as to
begin its reinstatement inquiry by examining past conduct and, if
it is sufficiently egregious, barring reinstatement altogether
without looking at subsequent events. [Fn. 37] At the other end of
the spectrum, the Supreme Court of Mississippi apparently looks
only to the petitioner's present "firm resolve to live a correct
life evidenced by outward manifestation sufficient to convince a
reasonable mind clearly that the person has reformed."[Fn. 38]
But most courts take an intermediate approach.
When most courts examine prior conduct, they tend to
balance the evidence of the petitioner's current good character
with the seriousness of the prior misconduct, inquiring whether the
former is of sufficient weight to overcome the latter. [Fn. 39]
For example, the District of Columbia Court of Appeals has devised
a five-part test a petitioner must satisfy in order to be
reinstated. This comprehensive test takes into account the
petitioner's past and present conduct, qualifications, and
attitude. It looks at the following factors:
(1) the nature and circumstances of the
misconduct for which the attorney was disciplined; (2) whether the
attorney recognizes the seriousness of the misconduct; (3) the
attorney's conduct since discipline was imposed, including the
steps taken to remedy past wrongs and prevent new ones; (4) the
attorney's present character; and (5) the attorney's present
qualifications and competence to practice law. [Fn. 40]
We agree with the intermediate approach taken by the
majority of courts, and we conclude that a petitioner's past
conduct plays an important role in determining whether the
petitioner has been rehabilitated. We therefore hold that it is
appropriate to consider a petitioner's past conduct in a
reinstatement proceeding.
b. Consideration of a petitioner's acknowledgment
of and/or level of remorse for prior actions is appropriate.
One of the reasons the bar association gives for the
board's refusal to reinstate Wiederholt is his "failure to
acknowledge his wrongdoing or show remorse." Courts in numerous
jurisdictions with reinstatement rules similar to Alaska's have
found a petitioner's remorse and consciousness of prior wrongdoing
to be persuasive factors in determining whether a petitioner
currently has the level of moral and ethical character required for
reinstatement. [Fn. 41]
As discussed above, a primary concern of the
reinstatement process is whether the petitioner has been
rehabilitated and whether he has presented sufficient evidence to
demonstrate that those weaknesses that produced the earlier
misconduct have been corrected. [Fn. 42] Because the petitioner's
remorse and acknowledgment of prior wrongdoing are vital to this
determination, we hold that this factor is appropriate to consider
in a reinstatement decision.
c. The board may take into account the amount of
time that has passed since disbarment.
In making its determination in Wiederholt's case, the
board explicitly took into account the relatively short amount of
time that had passed since his disbarment. It noted that
Wiederholt had petitioned for reinstatement "at the earliest
possible moment of eligibility"and had filed his petition for
reinstatement "several weeks before the mandatory term of his
disbarment expired." It was not error to consider this factor.
Other jurisdictions have considered the length of time an
attorney has been disbarred in conjunction with his or her past
acts when determining whether reinstatement should occur. [Fn. 43]
The Rhode Island Supreme Court has stated that "[w]hen an attorney
has engaged in repeated acts or a calculated series of acts
designed to corrupt the administration of justice, the showing of
present fitness may require a lengthier period of rehabilitation."
[Fn. 44] We agree with that assessment and conclude that this
factor is applicable in this case and was properly considered.
B. Wiederholt Did Not Satisfy the Requirements for
Reinstatement Set Out in Alaska Bar Rule 29.
The board denied Wiederholt's petition for reinstatement
on the grounds that he failed to demonstrate by clear and
convincing evidence two essential elements of the Rule 29(c)
criteria for reinstatement: (1) "that he currently possesses the
moral qualifications to qualify for reinstatement"and (2) "that
his resumption of the practice of law at this time would not be
detrimental to the integrity and standing of the Bar or the
administration of justice or subversive of the public interest."
Wiederholt argues that the evidence in the record
supports the conclusion that he is morally fit to practice law. He
further states that "[g]iven the weight of favorable evidence, the
absence of any opposing witness, and the favorable recommendation
of the Bar's only witness,"the Hearing Committee's report does not
offer any "rational basis"supporting its decision. We disagree.
Although the record indicates that Wiederholt has made
some changes since his disbarment, he did not satisfy his burden of
proving the above elements of Rule 29(c) by clear and convincing
evidence. Moreover, the Hearing Committee's report cogently sets
out the rationale behind its result, and its findings and
conclusions of law are amply supported by the record.
1. Wiederholt's testimony and evidence did not prove
that he has the requisite moral character for reinstatement.
Wiederholt contends that he has presented the testimony
of a large number of witnesses confirming "his worthy character or
his moral fitness,"including "[d]istinguished members of the Bar,
a former Supreme Court justice, and other lay witnesses."
Wiederholt further contends that the Hearing Committee and
Disciplinary Board disregarded this testimony and found Wiederholt
to be "morally deficient"based only upon Wiederholt's "regard for
the facts of his disbarment almost six years ago." This
characterization is inaccurate.
a. Wiederholt's past conduct
The bar association notes that Wiederholt's past conduct
provides strong evidence that he lacks the moral fitness to be
readmitted to the Alaska Bar. As discussed, Wiederholt's past
conduct is a permissible factor for the board to take into account
because the conduct leading up to disbarment is relevant in
assessing an applicant's moral fitness.
The record does support the bar association's argument --
Wiederholt's misconduct was indeed serious. As this court's
opinion and the attached appendices in his disbarment case
indicate, Wiederholt engaged in numerous and repeated instances of
misconduct over a span of four years, including committing criminal
forgery, assaulting opposing counsel, engaging in abusive discovery
tactics, using threatening language towards opposing counsel, and
writing a threatening letter to an unrepresented claimant on behalf
of a client. [Fn. 45] All of these, taken together, demonstrate a
pattern of serious misconduct and therefore provide some evidence
that Wiederholt lacks the requisite moral fitness to be readmitted
to the practice of law in Alaska.
b. Wiederholt's lack of remorse
Wiederholt's testimony and evidence presented at the
hearing did not demonstrate by clear and convincing evidence that
he recognized the seriousness of his past conduct.
The bar association contends that Wiederholt's testimony
at the hearing provided strong evidence that his moral character
has not reformed from his pre-disbarment days. In support of its
position, the bar association argues that Wiederholt has failed to
show remorse for his actions and has not acknowledged his previous
wrongdoing, which he attempts to pass off as a misunderstanding of
definitions. Wiederholt claims that the board's findings are
"flatly unsupported by the record"and that he has "acknowledged
his personal responsibility for the disbarment." In support of his
position he quotes extensively from the transcript; however,
Wiederholt's quotations are selective and he leaves out
considerable portions of his testimony that indicate the opposite.
An examination of the full record supports the bar
association's contentions. The transcript of Wiederholt's
testimony is replete with examples demonstrating that he has little
remorse for his previous actions and has no consciousness or
understanding of the nature or extent of his past wrongdoing.
During his testimony, Wiederholt continued to maintain
that his past conduct did not warrant disbarment and that the board
and this court wrongly decided at least some of the charges against
him, including the Nesbett grievance, in which he was disciplined
for deceiving the court about whether a client's judgment had been
satisfied. Wiederholt stated that he did not believe that he acted
unethically and that he simply believed the board and this court
defined unethical conduct differently than he did. Rather than
stating that he has acknowledged his past mistakes and will change
in the future, he simply stated to the panel that "I accept full
responsibility for the conclusions that the committee and the
supreme court ultimately reached . . . . [W]hile I believed that my
conduct did not warrant disbarment, it is the conclusion that the
Bar rightfully or wrongfully reached." He further stated that he
"deeply regret[s] the findings that the court came to"-- not that
he regretted his actions -- and reemphasized that he "had a
different understanding of what happened."
Even when he did acknowledge that he behaved in an
unethical, unprofessional manner, Wiederholt still attempted to
defend his actions. At the hearing, Wiederholt admitted that his
act of kicking opposing counsel Dennis Maloney was "stupid,"
"unethical,"and "wrong." However, he then went on to minimize and
justify his actions by stating that Maloney was bigger and heavier
than he was and that Maloney had started the incident. He also
insinuated that Maloney deserved what he received.
The board found the fact that Wiederholt did not
apologize to several of his victims to be a significant indicator
of his lack of remorse for his previous actions, and consequently,
a lack of understanding of his prior wrongdoing. The record
supports this conclusion: Wiederholt did not apologize or make any
restitution to at least three of his former victims.
Also significant to the board was Wiederholt's insulting
and abusive attitude towards others. This trait was manifested by
Wiederholt, and through counsel, in belittling a disbarred lawyer
who allegedly works as a hotel doorman, and criticizing a judge and
bar counsel for mistreating him.
c. Wiederholt's failure to take remedial measures
previously recommended by the board and this court
During Wiederholt's disbarment proceedings in 1993, the
board had recommended that Wiederholt seek counseling from a mental
health professional. Wiederholt has not done so.
Wiederholt contends that he has sought counseling from
his pastor, Reverend George Gilchrist, and that this counseling
discounts the conclusion that he did not secure help from a mental
health professional. Once again, the record does not support
Wiederholt's contention. Reverend Gilchrist's testimony at the
hearing revealed that any counseling of Wiederholt was very
informal, with the majority of the contacts taking place in the
parking lot or while skiing and cycling, and occurring only seven
to eight times per year. His testimony also revealed that
Wiederholt had sought such counseling prior to disbarment and that
Wiederholt's frequency of encounters remained the same after his
disbarment.
The fact that Wiederholt did not take the board's
recommendation and seek professional counseling is strong evidence
of his disregard of the import of the Disciplinary Board's
suggestions, as well as his failure to recognize the nature and
extent of his wrongdoing.
d. Wiederholt's witnesses
Wiederholt argues that the board erroneously disregarded
the testimony of his witnesses, all of whom testified favorably and
put their professional reputations behind him. The bar association
concedes that much of the testimony of Wiederholt's witnesses is
favorable; however, it states that this evidence was not strong
enough to overcome the presumption against reinstatement.
The board concluded that the weight of the witnesses'
testimony was insufficient to satisfy Wiederholt's high burden of
proof for a number of reasons. Although his witnesses testified
favorably about him in other areas, they did not have sufficient
information about his moral qualifications. For example, while
Wiederholt's employers were able to address his legal competency
and his pastor testified to his ability to handle daily problems,
they had virtually no knowledge of how he conducted himself in the
practice of law or the events that led to his disbarment.
Similarly, the testimony of his friends, though conveying favorable
character judgments, did not reveal knowledge of the events leading
to his disbarment. Consequently, the board concluded that
Wiederholt's witnesses could not adequately evaluate whether
Wiederholt truly had reformed.
For these reasons the board did not err by discounting
the testimony of Wiederholt's witnesses on the subject of moral
fitness. Most jurisdictions attach considerable significance to
the fact that a petitioner's witnesses do not know about the
petitioner's wrongdoing and merely comment that the petitioner has
moral character at the present time. [Fn. 46] For example, the
Oregon Supreme Court has emphasized that such statements are "not
determinative of the question of whether [the] applicant is likely
to repeat his misconduct."[Fn. 47] Courts have also suggested
that witnesses should relate specific facts or instances that form
the basis of their opinions. [Fn. 48] We agree.
While the psychiatrists testifying at the hearing both
stated that Wiederholt has made significant strides in his
emotional development, the board found that this improvement did
not necessarily indicate that Wiederholt was morally fit to
practice law or that he could handle the stresses of being a lawyer
if permitted to resume that position. While we recognize that
Wiederholt has made some improvement emotionally, we agree with the
board's conclusion regarding the impact of the stresses of the
practice of law.
First, because the doctors had evaluated Wiederholt in
his present work situation, where he is supervised by other lawyers
and shielded from the pressures of law practice, their testimony
provided no indication that Wiederholt could withstand the
pressures of being a lawyer, especially a solo practitioner.
Second, at the time of disbarment, psychiatrist Dr. Aaron Wolf
testified that Wiederholt's dishonest acts could not be completely
explained by psychological insights, and the Hearing Committee
concluded that Wiederholt's actions "seem[ed] unrelated to his
personality disorder." Therefore, an improvement in Wiederholt's
psychiatric situation, without more, does not indicate that the
circumstances that led to his disbarment would not happen again.
Finally, Wiederholt did not seek counseling from a mental health
professional and instead opted to continue to receive informal
emotional counseling from his pastor. As discussed above, given
the nature of these counseling sessions, the board did not err in
concluding that they had little effect in reforming Wiederholt's
moral character.
Wiederholt contends that the board erred in ruling
against him on the moral fitness issue because the bar association
did not present one witness to support its contention that he
lacked the moral qualifications to practice law. But the bar
association is not required to present witnesses to make out its
case. [Fn. 49] The burden of proving by clear and convincing
evidence that the standards of Rule 29 are met falls on the
petitioner.
e. Conclusion
The record supports the board's conclusion that
Wiederholt has not proven his moral fitness by clear and convincing
evidence. Wiederholt's testimony, in which he blames this court
and the Alaska Bar Association for his problems and attempts to
justify and minimize his actions, shows that he fails to understand
the extent and significance of his previous misconduct. His
refusal to seek psychiatric assistance as suggested by the board in
the 1993 proceeding demonstrates his reluctance to comply with the
demands of the Disciplinary Board. Finally, the testimony of his
witnesses, though favorable in some respects, is insufficient to
satisfy his burden of proving by clear and convincing evidence that
he is morally fit to practice law.
2. Wiederholt did not prove by clear and convincing
evidence that his reinstatement will not be detrimental to the
integrity and standing of the bar, the administration of justice,
or subversive to the public interest.
The board also concluded that Wiederholt did not meet his
burden of proving by clear and convincing evidence that his
reinstatement will not be detrimental to the integrity and standing
of the bar or the administration of justice, or subversive to the
public interest.
As discussed, the board correctly found that Wiederholt
did not meet his burden of proving by clear and convincing evidence
that he is morally fit to practice law. Many of those same issues
and concerns are pertinent to the issue of the integrity of the
profession and public protection. And the board's conclusions are
again amply supported by the record.
First, the board found that serious questions existed
concerning Wiederholt's possibility of causing harm in the future
despite his showing that he "is more mature and mentally stable
today than a few years ago." The board noted that Wiederholt's
most serious instances of misconduct did not arise from
inexperience, ignorance, or psychiatric problems and were instead
"knowing and intentional acts of misconduct"performed with "the
conscious purpose of achieving wrongful objectives."
Second, the board found that Wiederholt's lack of
remorse, lack of consciousness concerning his past wrongdoing,
failure to accept responsibility for his actions, and his tendency
to justify and minimize his past behavior provide strong evidence
that he could again engage in similar behavior in the future.
Third, the presentation of Wiederholt's case at the
hearing, which included belittling another disbarred lawyer, and
accusing bar counsel of soliciting grievances against him, also
indicated that Wiederholt had not abandoned the lack of respect for
the system and abusive litigation tactics that had led in part to
his disbarment.
Fourth, the board further found that Wiederholt has made
no showing that he will be able to function unsupervised in the
stress-filled practice of law since the testimony of the
psychiatrists at the hearing was based on observations of him in
the highly supervised, lower stress employment he had as a
paralegal.
Finally, the board found that Wiederholt's witnesses'
lack of knowledge about the events that led to his disbarment
suggested that his witnesses could not provide informed insight
into whether Wiederholt truly had reformed.
Again, Wiederholt's argument that the board did not
present any evidence or witnesses to back up its position is
inapposite; the burden of proving that his reinstatement will not
be detrimental falls on Wiederholt, not the board. [Fn. 50]
Because the record supports the board's conclusion that
Wiederholt did not prove by clear and convincing evidence that his
reinstatement will not be detrimental to the integrity of the bar
or the public at large, we uphold its decision on this issue.
C. The Disciplinary Board's Time Requirements under Alaska
Bar Rule 29 Are Directory, Not Mandatory.
Wiederholt contends that despite his timely compliance
with the requirements of Rule 29, the Hearing Committee and the
Disciplinary Board did not abide by the time limits imposed by the
rule. Wiederholt is partially correct; the Hearing Committee did
not meet its time requirements. However, because we conclude that
these time limits are directory, as discussed in greater detail
below, Wiederholt is not entitled to any relief for the Hearing
Committee's noncompliance.
Alaska Bar Rule 29 states that upon the receipt of a
reinstatement petition, the Hearing Committee "will promptly
schedule a hearing to take place within 30 days of the filing of
the petition."[Fn. 51] After the conclusion of the hearing, the
Hearing Committee has thirty days within which it "will issue a
report setting forth its findings of fact, conclusions of law, and
recommendation."[Fn. 52] Finally, "within 45 days of its receipt
of the Hearing Committee's report, the [Disciplinary] Board will
review the report and the record; the Board will file its findings
of fact, conclusions of law, and recommendation with the Court,
together with the record and the Hearing Committee report."[Fn.
53] Rule 29 does not specify any remedy for noncompliance with the
timing provisions.
The Hearing Committee met neither of its thirty-day
deadlines. First, it did not schedule a hearing to take place
within thirty days of the filing of Wiederholt's petition.
Wiederholt filed his petition for reinstatement on June 23, 1999.
The hearing on his petition was initially scheduled for August 31,
1999; he was notified of this fact on August 2. Second, the
Hearing Committee did not meet the requirement of providing its
rulings and findings within thirty days of the hearing.
Wiederholt's hearing was held on September 10, 1999. Both parties
submitted additional briefing and closing arguments by October 8.
The Hearing Committee did not file its findings of fact and rulings
of law until February 3, 2000.
On the other hand, the Disciplinary Board did act within
the forty-five day period provided in Rule 29(c). The Board
received the Hearing Committee report on February 3 and filed its
report on March 10.
Whether the Hearing Committee's failure to adhere to the
time limits specified in Rule 29 entitles Wiederholt to any relief
turns on whether the timing provisions are mandatory or merely
directory. We have previously stated that if a rule or regulation
"is mandatory, strict compliance is required."[Fn. 54] However,
"if it is directory, substantial compliance is sufficient absent
significant prejudice to the other party."[Fn. 55] A rule is
directory rather than mandatory if (1) its wording is affirmative
rather than prohibitive; (2) the legislative intent was to create
"guidelines for the orderly conduct of public business"; and (3)
serious, practical consequences would follow from a finding that it
is mandatory. [Fn. 56] In a recent case, we held that the
statutory requirement that an order on a hearing "shall"be made
within thirty days was directory: [Fn. 57]
"[S]hall"is a word of command; however, in
the absence of injury to the defendant and in the absence of a
penalty for failure to comply with the statute, "shall"denotes
simple futurity rather than a command. [Fn. 58]
We conclude that the time provisions of Rule 29 are
directory. First, the wording of Rule 29's time limits is
affirmative. The rule states that the Hearing Committee "will"act
within the specified time period; it does not prohibit it from
doing otherwise. Second, it appears that the primary purpose of
the time limits is merely to provide a broad set of guidelines for
how the Hearing Committee and Disciplinary Board should proceed.
Third, a finding that this rule is mandatory would lead to serious,
practical consequences. Imposing a strict thirty- or forty-five-
day time limit on the actions of the Hearing Committee and
Disciplinary Board would fail to take into account the many common
exigencies and contingencies of litigation. For example, in the
present case, Wiederholt's hearing was delayed by the scheduling of
a pre-hearing conference, Wiederholt's motion to strike the bar
association's designation of record, and the bar association's
request for extra time so that the parties would have adequate time
to evaluate the report of psychiatric expert Dr. Aaron Wolf. All
of these events are commonplace in litigation. Imposing a strict
time limit would clearly inhibit the discretion of the Hearing
Committee to make adjustments for these or other similar events.
In addition, it is ultimately beneficial to petitioners to have a
scheme where the Hearing Committee or Disciplinary Board is not
bound by strict time constraints because the Committee and Board
have greater latitude to approve continuances if the petitioner
needs more time for any reason.
Furthermore, this court and others have suggested that
"time limits for the issuance of findings of fact are directory and
not mandatory, and that the mere lapse of time is not enough to
require reversal."[Fn. 59] Because we conclude that the time
limits imposed by Rule 29 are directory, the Hearing Committee's
failure to abide by them does not entitle Wiederholt to any relief
unless he was substantially prejudiced by the delay. [Fn. 60] The
record indicates that he was not. The delay did not impinge on any
of Wiederholt's rights -- he was already disbarred and unable to
practice law -- and did not affect the resolution of the case.
In addition, the Hearing Committee did not act
unreasonably. First, the Hearing Committee acted promptly once it
was assigned Wiederholt's petition on June 30, 1999. Once the
Hearing Committee had notice of the case, it did notify Wiederholt
on July 20 that it had scheduled a pre-hearing conference for his
case on July 28. Both of these dates do fall within a reasonable
period after Wiederholt filed his petition. The result of the pre-
hearing conference was a scheduling order, issued on August 2, that
specified all of the deadlines for filing motions and witness lists
in the case and set a hearing date of August 31. A notice of
formal hearing was sent to Wiederholt on August 9. Second,
Wiederholt himself slowed down the process by filing a motion to
strike the bar association's designation of record for his
reinstatement hearing on August 16. [Fn. 61] Third, although the
bar association did in fact file a request for a second pre-hearing
conference to determine a new hearing date on August 19, the
purpose of this request was to aid both itself and Wiederholt in
better preparing their cases. This request sought to delay the
hearing so that the parties would have adequate time to review the
written psychiatric evaluation of Wiederholt prepared by Dr. Aaron
Wolf. Because Dr. Wolf was meeting with Wiederholt on August 24 (a
date agreed upon by Wiederholt) and could not complete his written
report until August 31, the date of the hearing, the bar
association argued that all of the parties needed extra time to
address any questions raised by the report and to determine whether
Dr. Wolf would be called as a witness.
We do note, however, that there was an unexplained delay
in the issuance of the Hearing Committee's rulings and findings.
Wiederholt's reinstatement proceedings concluded on October 8,
1999, yet the Hearing Committee did not issue its report until
February 2000. There is no information in the record to explain
why the Hearing Committee took this long. And the Disciplinary
Board requested, from this court, extra time to file its report
because the Hearing Committee had not timely submitted its report.
But we conclude that this delay did not prejudice Wiederholt.
The record does support Wiederholt's contention that the
Hearing Committee did not abide by the time limits set out in Rule
29. But this provision is directory and Wiederholt was not
substantially prejudiced by the delay. Accordingly, Wiederholt is
entitled to no relief on this basis.
D. This Is Not the Forum to Create Bar Rules on Disbarment.
1. Disbarment in Alaska is not permanent.
The bar association asks this court to determine whether
"some disbarment misconduct is so serious"that the individual can
be permanently barred from reinstatement. It further contends that
if this court determines that such conduct exists, it should
determine whether Wiederholt's actions meet this standard. By
asking this court to create a rule by which certain individuals can
be forever barred from reinstatement, the bar association is
suggesting a rule that states that permanent disbarment can exist
in Alaska, at least under certain limited circumstances.
Disbarment in Alaska is not permanent. Alaska Bar Rule
29(b)(5) allows a lawyer who has been disbarred to apply for
reinstatement five years from the effective date of the disbarment.
[Fn. 62] It is not appropriate for this court to make an ad hoc
decision on this issue in the context of this case. Any rule
amendment should take place pursuant to the standard practices for
amending the rules. [Fn. 63]
2. The Rules Do Not Specify a Waiting Period Before
Wiederholt Can Reapply.
The bar association contends that if this court denies
Wiederholt's petition, "no rule prevents him from submitting a new
application the next day." Consequently, the bar association asks
for the designation of a waiting period before he can reapply for
reinstatement in the event we decide that Weiderholt should not be
reinstated.
The Alaska Bar Rules do not place any restrictions on an
individual's ability to file a subsequent petition for
reinstatement. The bar association may be correct in its
assertion that "the imposition of a waiting period will prevent
other applicants from 'practicing' reinstatement till they can say
the right things." However, Wiederholt's appeal is not the proper
forum to set a procedural rule that binds him and all other future
petitioners seeking reinstatement under Rule 29.
The designation of a waiting period prior to
reapplication for reinstatement is a matter that should be governed
by rule. Therefore, if the bar association seeks to amend Rule 29
to include a waiting period, it has the power to commence the
process by presenting this court with a suitable proposal. [Fn. 64]
It has not done so. We decline to act in these circumstances.
V. CONCLUSION
Because the Disciplinary Board took all of the relevant
factors into account and because the weight of the evidence
supports the board's denial of Wiederholt's petition for
reinstatement to the practice of law, we AFFIRM the decision not to
reinstate Wiederholt.
FOOTNOTES
Footnote 1:
See In re Wiederholt, 877 P.2d 765, 768-69 (Alaska 1994).
This court also weighed Wiederholt's acts of kicking opposing
counsel and engaging in abusive discovery tactics in its decision.
See id. This court found these four incidents sufficient grounds
for disbarment and did not consider the other grievances that were
brought against Wiederholt, which included improper sexual advances
to a client, using threatening language towards opposing counsel,
direct contact with an opposing party who was represented by
counsel, and writing a threatening letter to an unrepresented
claimant on behalf of a client. See id.
Footnote 2:
Pursuant to Alaska Bar Rule 29, a disbarred attorney is
eligible for reinstatement to the practice of law after a five-year
period. See Alaska Bar R. 29(b)(5). This rule further provides
that a petitioner seeking reinstatement must demonstrate "that
(s)he has the moral qualifications, competency, and knowledge of
law required for admission to the practice of law in this State and
that his or her resumption of the practice of law in . . . the
State will not be detrimental to the integrity and standing of the
Bar, or to the administration of justice, or subversive of the
public interest[.]"See Alaska Bar R. 29(c)(1).
Footnote 3:
According to Bar Rule 29, a preliminary hearing on all
petitions for reinstatement is held before an Area Hearing
Committee in the jurisdiction where the petitioner had maintained
an office. See Alaska Bar R. 29(c)(1). After the Hearing
Committee issues a recommendation, the Alaska Bar Association's
Disciplinary Board reviews the Hearing Committee's findings and
makes a recommendation to this court. See Alaska Bar R. 29(c)(2).
Footnote 4:
This opinion will refer to the Alaska Bar Association, in its
capacity as a party, as "the bar association." It will refer to
the Alaska Bar Association Disciplinary Board as "the Disciplinary
Board"or "the board."
Footnote 5:
See Wiederholt, 877 P.2d at 767.
Footnote 6:
In re Triem, 929 P.2d 634, 640 (Alaska 1996) (quoting In re
West, 805 P.2d 351, 353 n.3 (Alaska 1991)).
Footnote 7:
Id.
Footnote 8:
Id. (citing In re Buckalew, 731 P.2d 48, 51-52 (Alaska 1986)).
Footnote 9:
Id. (citing In re Frost, 863 P.2d 843, 854 (Alaska 1993)).
Most courts reviewing a bar association disciplinary board's
recommendation on reinstatement exercise original jurisdiction and
review the matter under a de novo or independent judgment standard.
See In re Fogel, 679 A.2d 1052, 1054 (D.C. App. 1996); Montgomery
v. Disciplinary Bd. of the Supreme Court (In re Montgomery), 566
N.W.2d 426, 428 (N.D. 1997); In re Katz, 907 P.2d 1029, 1030 (Okla.
1995); In re Griffith, 913 P.2d 695, 699 (Or. 1996). At the same
time, these jurisdictions give deference to the disciplinary
board's findings of fact, conclusions, and recommendations.
SeeFogel, 679 A.2d at 1054; Montgomery, 566 N.W.2d at 428.
Footnote 10:
See ABA Standards, Standard 2.10 (Readmission and
Reinstatement). The ABA uses the term "readmission"to refer to
the return of a disbarred attorney to the practice of law and uses
the term "reinstatement"to refer to the return to practice of a
suspended lawyer. See id. The Alaska Bar Rules use the word
"reinstatement"to cover both of these situations. See Alaska Bar
R. 29(a). This opinion uses "reinstatement"except when referring
to the American Bar Association's position.
Footnote 11:
See ABA Standards, Standard 2.10 (Readmission and
Reinstatement). Because we are guided by the American Bar
Association's Standards for Imposing Lawyer Sanctions when
exercising independent judgment on lawyer discipline matters,
Triem, 929 P.2d at 640, the ABA Standards regarding the presumption
against readmission provide strong support for the Alaska Bar
Association's statement that there is a general presumption against
readmission of disbarred attorneys.
Footnote 12:
See, e.g., In re Butcher, 907 S.W.2d 715, 717 (Ark. 1995);
Florida Bar v. Clement, 662 So. 2d 690, 699 (Fla. 1995).
Footnote 13:
In re Costigan, 664 A.2d 518, 520 (Pa. 1995) (quoting Office
of Disciplinary Counsel v. Keller, 506 A.2d 872, 875 (Pa. 1986)).
Footnote 14:
See In re Pier, 561 N.W.2d 297, 299 (S.D. 1997).
Footnote 15:
Id. at 300 (quoting In re Morrison, 186 N.W. 556, 557 (S.D.
1922)).
Footnote 16:
In re Griffith, 913 P.2d 695, 699 (Or. 1996).
Footnote 17:
Morrison, 186 N.W. at 557.
Footnote 18:
ABA Standards, Standard 2.10 (Readmission and Reinstatement).
Footnote 19:
Id.
Footnote 20:
See, e.g., Griffith, 913 P.2d at 699; In re Stroh, 739 P.2d
690, 693 (Wash. 1987); see also Greene v. Kentucky Bar Assoc., 904
S.W.2d 233, 236 (Ky. 1995) ("The ultimate and decisive question is
whether the applicant is now of good moral character and is a fit
and proper person to be reentrusted with the confidence and
privilege of being an attorney at law.")
Footnote 21:
See, e.g., In re Jahn, 559 So. 2d 1089, 1090 (Fla. 1990); In
re Reed, 368 S.E.2d 499, 500 (Ga. 1988).
Footnote 22:
Pier, 561 N.W.2d at 300 (quoting In re Egan, 161 N.W. 1003,
1006 (S.D. 1917)).
Footnote 23:
See, e.g., In re Nevill, 704 P.2d 1332, 1338 (Cal. 1985);
Baldridge v. Kentucky Bar Assoc., 980 S.W.2d 558, 560 (Ky. 1998);
Pier, 561 N.W.2d at 300.
Footnote 24:
See Pier, 561 N.W.2d at 300.
Footnote 25:
See, e.g., Alaska Bar R. 29; Griffith, 913 P.2d at 699; In re
Verlin, 731 A.2d 601, 602 (Pa. 1999); Stroh, 739 P.2d at 693.
Footnote 26:
See, e.g., In re Robbins, 836 P.2d 965, 966 (Ariz. 1992); In
re Jamison, 726 A.2d 690, 690 (D.C. App. 1999); In re Polito, 547
N.E.2d 465, 468 (Ill. 1989); In re Pool, 517 N.E.2d 444, 447 (Mass.
1988); In re Bradley, 897 P.2d 243, 244 (Okla. 1993); Stroh, 739
P.2d at 693.
Footnote 27:
See Pier, 561 N.W.2d at 300 (listing a large number of cases
from other jurisdictions and summarizing the requirements they have
set out for reinstatement). A number of jurisdictions have adopted
tests for reinstatement that incorporate the requirements set out
in Bar Rule 29 (competency, knowledge, moral fitness) as well as
one or more of the above requirements. See id.
Footnote 28:
Alaska Bar R. 29(c)(1). Neither party disputes that Rule 29
is the appropriate standard that Wiederholt must satisfy for
reinstatement.
Footnote 29:
See supra text accompanying note 27. See also Pier, 561
N.W.2d at 300.
Footnote 30:
ABA Standards, Standards 2.2 (Disbarment), 2.10 (Readmission
and Reinstatement).
Footnote 31:
See, e.g., In re Clyman, 713 A.2d 313, 315 (D.C. App. 1998);
In re Spence, 523 S.E.2d 323, 324 (Ga. 1999); In re Parker, 595
N.E.2d 549, 554 (Ill. 1992); In re Clinton, 659 A.2d 875, 876 (Md.
1995); In re Montgomery, 566 N.W.2d 426, 428 (N.D. 1997); In re
Greenberg, 749 A.2d 434, 436 (Pa. 2000); Pier, 561 N.W.2d at 300;
Stroh, 739 P.2d at 693; In re Hetzel, 346 N.W.2d 782, 787 (Wis.
1984).
In several states, the bar rule concerning reinstatement
explicitly provides for a clear and convincing evidence standard.
See In re Feldman, 675 N.Y.S.2d 675, 675 (App. Div. 1998); In re
Katz, 907 P.2d 1029, 1031 (Okla. 1995); In re Griffith, 913 P.2d
695, 699 (Or. 1996); In re Peotrowski, 706 A.2d 1315, 1316 (R.I.
1998); Murphy v. Board of Prof'l Responsibility, 924 S.W.2d 643,
644 (Tenn. 1996).
Footnote 32:
In re Rothenberg, 484 N.E.2d 289, 293 (Ill. 1985) (citations
omitted).
Footnote 33:
Accordingly, these issues are not in dispute and will not be
considered here.
Footnote 34:
In making its determination on Wiederholt's petition, the
Hearing Committee rejected Wiederholt's request to "disregard his
original misconduct and focus on his present qualifications to
practice."
Footnote 35:
See Alaska Bar R. 29(c)(1).
Footnote 36:
See, e.g., In re Gutman, 599 N.E.2d 604, 608 (Ind. 1992);
Parker, 595 N.E.2d at 554-55; Greene v. Kentucky Bar Assoc., 904
S.W.2d 233, 235 (Ky. 1995); In re Pool, 517 N.E.2d 444, 447 (Mass.
1988) (stating that disbarment conclusively proves moral unfitness
and remains as evidence of lack of moral fitness later);
Montgomery, 566 N.W.2d at 429-30 (holding that conduct leading to
disbarment has "great bearing"on whether petitioner has honesty
and integrity necessary for reinstatement); Katz, 907 P.2d at 1031;
Griffith, 913 P.2d at 699.
Footnote 37:
In re Greenberg, 749 A.2d 434, 435-36 (Pa. 2000).
Footnote 38:
Phillips v. Mississippi State Bar, 427 So. 2d 1380, 1382
(Miss. 1983) (quoting Ex parte Marshall, 147 So. 791, 798 (Miss.
1933)).
Footnote 39:
See Greene, 904 S.W.2d at 235 (stating that conduct leading to
disbarment is a factor in the reinstatement inquiry, but not the
most significant); Montgomery, 566 N.W.2d at 429; Katz, 907 P.2d at
1031.
Footnote 40:
In re Jamison, 726 A.2d 690, 690 (D.C. App. 1999) (citing In
re Roundtree, 503 A.2d 1215, 1217 (D.C. App. 1985)).
Footnote 41:
See, e.g., Florida Bd. of Bar Examiners re J.J.T., 761 So. 2d
1094, 1097 (Fla. 2000); Parker, 595 N.E.2d at 555; Greene, 904
S.W.2d at 235; In re Bradley, 897 P.2d 243, 244 (Okla. 1993);
Griffith, 913 P.2d at 701; In re Verlin, 731 A.2d 600, 603 (Pa.
1999); In re Costigan, 664 A.2d 518, 522 (Pa. 1995); In re
Peotrowski, 706 A.2d 1315, 1317 (R.I. 1998); In re Stroh, 739 P.2d
690, 694 (Wash. 1987).
Footnote 42:
See supra note 20 and accompanying text.
Footnote 43:
See, e.g., Verlin, 731 A.2d at 602; Stroh, 739 P.2d at 695;
see also In re Jahn, 559 So. 2d at 1089, 1090 (Fla. 1990).
Footnote 44:
Peotrowski, 706 A.2d at 1316 (citing In re Romano, 615 A.2d
476, 477 (R.I. 1992)).
Footnote 45:
See In re Wiederholt, 877 P.2d 765, 766-77 (Alaska 1994).
Footnote 46:
See, e.g., J.J.T., 761 So. 2d at 1097; Griffith, 913 P.2d at
700 (suggesting that it is insufficient for witnesses to say that
a petitioner simply "has"moral character because such statements
do not provide evidence of reformation); Lawyer Disciplinary Bd. v.
Sayre, 535 S.E.2d 719, 721 (W. Va. 2000).
Footnote 47:
Griffith, 913 P.2d at 700.
Footnote 48:
See, e.g., Murphy v. Board of Prof'l Responsibility, 924
S.W.2d 643, 647 (Tenn. 1996); Sayre, 535 S.E.2d at 721.
Footnote 49:
See, e.g., In re Greenberg, 749 A.2d 434, 436 (Pa. 2000).
Footnote 50:
See id.
Footnote 51:
Alaska Bar R. 29(c)(1).
Footnote 52:
Id.
Footnote 53:
Alaska Bar R. 29(c)(2).
Footnote 54:
Copper River Sch. Dist. v. State, 702 P.2d 625, 627 (Alaska
1985).
Footnote 55:
Id.
Footnote 56:
City of Yakutat v. Ryman, 654 P.2d 785, 789-91 (Alaska 1982).
Footnote 57:
See State, Dep't of Commerce and Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 357 (Alaska 2000).
Footnote 58:
Id. (quoting Commissioner of Ins. v. Stryker, 463 S.E.2d 163,
166 (Ga. App. 1995)).
Footnote 59:
Oaksmith v. Brusich, 774 P.2d 191, 201-02 (Alaska 1989); see
Hughes v. Nashua Mfg. Co., 65 Cal. Rptr. 380, 385 (Cal. App. 1968);
Hoppin v. Lang, 241 P. 636, 644 (Mont. 1925).
Footnote 60:
See Schnell, 8 P.3d at 357; Copper River Sch. Dist. v. State,
702 P.2d 625, 627 (Alaska 1985).
Footnote 61:
The bar association filed an opposition to his motion that
same day. Wiederholt then filed a reply on August 18. This motion
was denied on August 24.
Footnote 62:
See Alaska Bar R. 29(b)(5); Buckalew, 731 P.2d at 51 n.8.
Footnote 63:
See Alaska Bar R. 62.
Footnote 64:
See Alaska Bar Rule 62.
In the Supreme Court of the State of Alaska
In the Matter of the Reinstatement of: )
) Supreme Court No. S-09171
)
Jon E. Wiederholt ) Order
) Petition for Rehearing
)
) Date of Order: 6/15/01
Alaska Bar Association File No. 1999R001
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
On consideration of the Petition for Rehearing, filed on 5/3/01,
It is Ordered:
1. The Petition for Rehearing is Denied in all respects except one: the words
"making improper sexual advances towards a client,"at page 20, line 26 are Stricken.
2. Opinion No. 5393, issued on April 27, 2001, is Withdrawn, and opinion
No. 5421, is issued on this date in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
West Publishing
Other Publishers
Distribution:
John R Strachan
Attorney at Law
1500 West 33rd #100
Anchorage AK 99503
Mark Woelber
Alaska Bar Association
PO Box 100279
Anchorage AK 99501-0279
