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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Reinstatement of Wiederholt (03/28/2008) sp-6243
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| In the Reinstatement Matter | ) |
| Involving | ) Supreme Court No. S- 12785 |
| ) | |
| JON E. WIEDERHOLT, | ) ABA File No. 2006R001 |
| ) | |
| Petitioner. | ) O P I N I O N |
| ) | |
| ) No. 6243 March 28, 2008 | |
Appeal from the Alaska
Bar Association Disciplinary Board.
Appearances: Terry C. Aglietti, Aglietti,
Offret & Woofter, Anchorage, for Petitioner.
Stephen J. Van Goor, Alaska Bar Association,
Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
PER CURIAM
EASTAUGH, Justice, with whom CARPENETI,
Justice, joins, dissenting.
Jon E. Wiederholt was disbarred by order of this court
in 1994.1 He unsuccessfully petitioned for reinstatement in
1999, 2002, and 2005.2 In 2006 Wiederholt again petitioned for
reinstatement. A panel of the Area Hearing Committee conducted
an evidentiary hearing and recommended that he be reinstated.3
The Disciplinary Board rejected this recommendation and
recommends that Wiederholt not be readmitted.4
Under Alaska Bar Rule 29(c)(2) it is incumbent upon
this court to either accept or reject the recommendation of the
Disciplinary Board concerning a reinstatement petition. We
exercise our judgment concerning a recommendation independently,
and also independently review the entire record.5 But we afford
great weight to the Boards findings of fact.6 The deference owed
to such findings derives from the responsibility to conduct
disciplinary proceedings which this court has delegated to the
Bar Association.7 There is a presumption against reinstatement
after disbarment8 and the petitioner has the
burden of demonstrating by clear and
convincing evidence 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[.][9]
Wiederholt made a persuasive showing before the Area
Hearing Committee that he satisfied the requirements of Bar Rule
29(c). This court is particularly impressed by his record of
community service as an emergency medical technician.10 But after
hearing Wiederholts testimony under oath, the Disciplinary Board
concluded in essence that Wiederholt lacks insight into the
reasons for the conduct that led to his disbarment. The Board
was therefore unable to conclude that Wiederholts reinstatement
to the bar would not be detrimental to the administration of
justice or subversive of the public interest.
In light of the customary deference afforded by this
court to the Disciplinary Boards findings, and in view of the
presumption against reinstatement and the heavy burden imposed on
a petitioner seeking reinstatement, this court accepts the
recommendation of the Disciplinary Board.11
The petition for reinstatement is DENIED.
EASTAUGH, Justice, with whom, CARPENETI, Justice, joins,
dissenting.
Disbarred attorney Jon Wiederholt again petitions for
reinstatement and this court, accepting the adverse findings and
recommendation of the disciplinary board, again denies his
petition. Because I do not agree with the disciplinary boards
adverse findings, I respectfully dissent from the courts
acceptance of the boards recommendation. In my view, the proper
result is Wiederholts conditional reinstatement.
After conducting a 2006 evidentiary hearing at which
eight witnesses (including Wiederholt) testified in person, the
area hearing committee issued thorough findings, conclusions, and
recommendations. Applying the appropriate multi-factor test,1
the area hearing committee recommended reinstatement. Among
other things, it found that Wiederholt had established his
acceptance of his past wrongdoing with honesty and sincerity;
that by clear and convincing evidence Wiederholt had proved he
has the present moral fitness to be reinstated to the practice of
law; and that by clear and convincing evidence he had established
that his resumption of the practice of law would not be
detrimental to the bar or the administration of justice, and
would not subvert the public interest. It therefore recommended
reinstatement. The area hearing committee was not unanimous; one
member dissented.
After reviewing the area hearing committees findings
and recommendations and questioning Wiederholt in person, the
disciplinary board in 2007 recommended against reinstatement.2
It did so because it ultimately was unable to find that Mr.
Wiederholt accepts his wrongdoing with honesty and sincerity, or
that he has the present moral fitness to be readmitted to the
practice of law. The disciplinary board accepted all of the area
hearing committees findings, except those on the topics of
acceptance of wrongdoing with honesty and sincerity, present
moral fitness, and proof that Wiederholts return to practice
would not be detrimental to the bar or the public. As to those
topics the disciplinary board made its own findings. They were
unfavorable to Wiederholt. Three disciplinary board members
dissented; they recommended reinstatement subject to a reasonable
period of supervised practice.
My starting point is the standard of review. In re
Reinstatement of Wiederholt (Wiederholt II) held that the
disciplinary boards findings of fact are entitled to great
weight.3 But we also recognized in that case that this court has
the authority, if not the obligation, to independently review the
entire record.4 And we also stated that [w]hen deciding
appropriate punishment, we need not accept the Disciplinary
Boards recommendation but may exercise independent judgment.5 I
agree with the position taken by Justice Carpeneti, who, in
dissenting from this courts 2004 decision denying reinstatement
to Wiederholt, would not have given the disciplinary boards
factual findings the usual great weight because we review
disciplinary board recommendations de novo and because, unlike
the area hearing committee, the disciplinary board saw and heard
none of the witnesses except Wiederholt.6
In my view, the customary deference given the
disciplinary boards findings should not supersede the exercise of
our independent judgment on reinstatement matters. That is
especially so here because the area hearing committee heard eight
witnesses in person, including Wiederholt, whereas the
disciplinary board heard only one witness, Wiederholt; the
disciplinary board was not in a superior position to the area
hearing committee to assess all the evidence.
It is also useful to note how the relevant evidence
came to the disciplinary board. The area hearing committee heard
live testimony from witnesses who favorably addressed, among
other things, Wiederholts remorse and acknowledgment of
wrongdoing. The area hearing committee issued a twenty-five page
document containing its findings, conclusions, and
recommendations; attached was one members nine-page dissent.7 At
its hearing, the disciplinary boards members heard arguments from
Wiederholts lawyer, who then, without first directly examining
Wiederholt, made Wiederholt available to answer any question of
the disciplinary boards members. Although it is true that
disciplinary board members asked Wiederholt very pointed
questions and that his responses were not necessarily compelling,
I do not regard his answers to be vague and equivocal as the
disciplinary board characterizes them and thus damningly
unpersuasive.
The disciplinary board reasons that Wiederholt could
have been expected to formulate the best possible answer to the
fundamental question, what did you do wrong and how do we know
you wont do it again. But the peculiar way Wiederholt was
offered to the disciplinary board to answer its questions left
him without the usual opportunity on direct examination to begin
his testimony with answers logically addressing each of the
reinstatement criteria.8 What instead occurred was a form of
group cross-examination in which eight of the nine disciplinary
board members took turns asking him questions. Nonetheless, I
read most of his testimony to confirm unequivocally and directly
the area hearing committees findings on his remorse and
recognition of wrongdoing. A few passages are less direct, but
in context, his testimony before the disciplinary board convinces
me that Wiederholt indeed recognized that his conduct had been
wrong (and even recognized that he had been wrong to previously
minimize his misconduct), that he was indeed remorseful, and that
he poses no risk of future misconduct.
The disciplinary boards decision to recommend against
reinstatement appears to be based on Wiederholts extemporaneous
responses to the boards questions regarding the forgery of a
clients endorsing signature on a check.9 In response to the
disciplinary boards questions, Wiederholt, among other things,
stated:
The long and the short of it was is that I
the money wasnt his. The method by which I
chose to get it back, to keep it, was what
was that was what was unethical. I dont
believe to this day that [my client] was
entitled to the money. What I should have
done is sequester a fee arb with him, thats
what I should have done. It was a quick and
efficacious way, or so I thought, to deal
with it.
The disciplinary board interpreted this particular response as
evidence of Wiederholts present inability to see, or to
articulate, the wrongness of his conduct and stated that
Wiederholt expresses no remorse at how his conduct affected his
own client.10 It interpreted this testimony as indicating that
Wiederholt still fails to recognize that the fee money covered by
the check was not his.
I disagree with these findings. Even taken in
isolation, his particular answer should not foreclose
reinstatement. And taken in context, it certainly should not do
so. Wiederholts testimony before the disciplinary board does not
show that he lacks remorse for his actions or that he fails to
recognize his earlier wrongdoing. When the disciplinary board
asked Wiederholt whether he had a problem admitting to the
conduct that led to his disbarment he replied no. And when asked
whether he would repeat the behavior that led to his disbarment,
Wiederholt stated that he would not: I can give you my word that
Im a much better person than I used to be. . . . Im kinder and
gentler and Im more reasonable . . . .
Furthermore, the record before the disciplinary board,
and this court, shows that Wiederholt is remorseful and not
merely remorseful about getting caught and disbarred. Wiederholt
testified before the area hearing committee as follows:
Q: In the October 2002 hearings, you
expressed remorse over each of the
incidents. Do you still feel that way
today? Do you honestly and sincerely
regret the harm that you caused to a
variety of different people the
lawyers, the clients, the court, the
Bar, the public?
A: I regret . . . two things. I regret the
harm that it caused and I think in some
sense to a greater degree, what I regret
more so is my inability to see that.
His affidavit supporting his reinstatement petition also shows
remorse: I have no words to express my regret for my errors in
judgment. I remain true to my offer of profound remorse for the
conduct precipitating these proceedings. And, in light of his
lengthy contextual discussion of the forgery, his responses to
the disciplinary boards questions, if occasionally imperfect,
were appropriate and unremarkable. In my view, Wiederholt
answered the disciplinary boards questions in the context in
which they were posed and his answers do not in context reveal
that he was not taking responsibility for what he did, including
the forgery.
If members of the disciplinary board had doubts about
whether Wiederholt was truly remorseful, one would expect
specific questions addressing that issue. Each member of the
disciplinary board had an opportunity to ask Wiederholt
questions. Eight members did so, but because no members
specifically asked him about remorse, Wiederholt should not be
faulted for any perceived failure to demonstrate remorse beyond
what the record, including his area hearing committee testimony,
already demonstrated.11
Moreover, it also seems significant that bar
disciplinary counsel, who was articulate and forceful in
protecting the publics interest at all earlier stages of the
disciplinary proceeding and Wiederholts multiple reinstatement
proceedings, was neutral before the area hearing committee and
the disciplinary board,12 and presented the disciplinary boards
position to us without personally urging denial of reinstatement.
Because the record contains ample evidence of
Wiederholts remorse and acknowledgment of his wrongdoing, I think
that the disciplinary boards recommendation should not be given
deference. In my independent judgment Wiederholt has met the
requirements for reinstatement under Alaska Bar Rule 29(c) and
Wiederholt II.13 The record shows that Wiederholt has diligently
worked on his rehabilitation, that he is remorseful, that he
accepts responsibility for his actions, that he is not still at
risk of committing a new forgery, and that, for the first time,
bar disciplinary counsel is not personally advocating for denial
of reinstatement. To me, the evidence discussed by the area
hearing committee is persuasive.
For these reasons I respectfully dissent from the
courts opinion.
BEFORE THE ALASKA BAR ASSOCIATION
DISCIPLINARY BOARD
In The Reinstatement Matter )
Involving )
)
JON E. WIEDERHOLT, )
)
Petitioner. )
)
ABA Membership No. 8312172
ABA File No. 2006R001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF
DISCIPLINARY BOARD
This reinstatement matter came before the Disciplinary
Board of the Alaska Bar Association on January 25, 2007. The
Board, having considered the report of the area hearing committee
filed October 31, 2006, and the presentation of the parties,
hereby denies Mr. Wiederholts request for reinstatement for the
reasons set forth below.
FACTUAL BACKGROUND
The procedural history of this matter is restated in
detail in the Findings of Fact, Conclusions of Law and
Recommendations of Area Hearing Committee. On January 25, 2007
the matter came before the Disciplinary Board for hearing. On
that date, the Board denied the request for reinstatement, with
an opinion to follow.
STANDARD OF REVIEW
While the Area Hearing Committee is charged with making
findings, conclusions, and recommendations in this matter, the
Disciplinary Board must review its findings and recommendations
de novo and may, if it determines to do so, make its own
findings, conclusions, and recommendations.1
FINDINGS OF FACT
The Area Hearing Committee did not make separate
findings of fact. Its findings are contained within its
conclusions of law, under its analysis of the factors to be
considered on a petition for reinstatement. The Disciplinary
Board accepts all of these findings, with the exception of
paragraphs 4.g., i., and j. These items will be discussed in
detail below.
CONCLUSIONS OF LAW
The legal standard to be applied to a petition for
reinstatement after disbarment have been restated and refined
during the long history of this case. The Supreme Court has
adopted a presumption against reinstatement.2 In order to be
reinstated, the disbarred attorney must show by clear and
convincing evidence that he or she meets the requirements of
Alaska Bar Rule 29(c)(1), which are moral qualifications,
competency, and knowledge of law . . . and that his or her
resumption of the practice of law in . . . the State will not be
detrimental to the Bar or the public.3 The Court also adopted
the analysis of the South Dakota Supreme Court set forth in In re
Pier4 to evaluate whether the applicant meets these criteria.5
This analysis has been referred to as the Pier review.6 In this
case, the Hearing Committee analyzed the facts within the
framework of the Pier criteria.
After reviewing the entire record, and considering the
arguments and testimony of counsel and Mr. Wiederholt at the
hearing before the Board, the Board makes the following findings
and conclusions on: a) acceptance of wrongdoing with b) honesty
and sincerity; present moral fitness; and c) proof that the
Petitioners 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. As to the other
Pier factors, the Board adopts the findings and conclusions of
the committee.
A. Acceptance of wrongdoing with honesty and
sincerity.
The Area Hearing Committee majority concluded that Mr.
Wiederholt established his acceptance of his past wrongdoing with
honesty and sincerity. The majority of the committee found that
his witnesses believed him to be sincere in his remorse, and that
he now appreciated that he had previously demonstrated an
inability to see how his conduct affected others. This Board
disagrees.
The Board elicited additional testimony from Mr.
Wiederholt at the January 25 hearing on the issue, particularly,
of the Metcalf matter. The Metcalf matter involved a check
issued to the client, Mr. Metcalf, and his attorney, Mr.
Wiederholt, for partial attorneys fees awarded to them against
the Republican Party. Mr. Wiederholt first became involved in a
heated verbal dispute with Mr. Metcalf over the fees, then forged
Mr. Metcalfs name to the joint check in order to be in a better
position to obtain the fees he believed were owed to him. At
this latest hearing before the Board, Mr. Wiederholt was asked
how it was he came to forge the clients signature on a check made
out to the client and to himself, and how he views his conduct
now. Mr. Wiederholt testified that the reason this misconduct
occurred was his inability to see a bigger global picture. How
my actions affected more than just my relationship between me and
Mr. Metcalf. He further testified that
[t]he long and the short of it was is that I
the money wasnt his. The method by which I
chose to get it back, to keep it, was what
was that was what was unethical. I dont
believe to this day that Mr. Metcalf was
entitled to the money. What I should have
done is sequester a fee arb with him, thats
what I should have done. It was a quick and
efficacious way, or so I thought, to deal
with it.
Mr. Wiederholts testimony on this subject, taken
together with other statements he has made on this and other
subjects over the history of this case, leads the Board to
conclude that Mr. Wiederholt has not shown by clear and
convincing evidence that he accepts his wrongdoing with honesty
and sincerity. His statement that the problem arose from his
inability to see the bigger picture illustrates his present
inability to see, or to articulate, the wrongness of his conduct.
One of the issues in the Metcalf matter was that the
dishonest and aggressive manner in which he dealt with the fee
dispute was aimed not at an opposing party but at his client, to
whom he owed the greatest ethical duty of loyalty. The harm done
in that instance was not so much the global picture or how his
actions affected more than just [the] relationship between [him]
and Mr. Metcalf. His conduct was directed at his client, whom he
threatened and from whom he attempted to obtain money by fraud.7
The original hearing committee concluded that the money in
question was not Mr. Wiederholts, but Mr. Metcalfs, a fact Mr.
Wiederholt apparently continues to dispute. Mr. Wiederholt now
expresses no remorse at how his conduct affected his own client
or how it was inconsistent with his ethical duty to his client;
his remorse is directed at how his conduct reflected on the legal
profession, and how it affected others outside the relationship
with his client. He plainly continues to feel at least somewhat
justified in his conduct with respect to his client, because the
money wasnt his.8 He never expresses understanding or regret that
he created a situation between himself and his own client where
he first cursed his client over the issue of whether and how much
he should be paid,9 then forged his clients signature in order to
ensure that he was paid.10 There were many ways in which he could
have avoided the fee dispute, by reducing the agreement to
writing, for example. Even now, in 2007, his view of the matter
is that [t]he method by which I chose to get it back, to keep it,
was what was that was what was unethical. I dont believe to
this day that Mr. Metcalf was entitled to the money. When asked
directly how he could have made the mistakes he did in the first
place, he responded in part that there were all kinds of reasons
at the time that that seemed like the right thing to do . . . .
It was an inability to see the whole picture.
A similar concern is raised by Mr. Wiederholts
statement to the Board that Dr. Wolf, in all candor, left the
last hearing telling my counsel that he thinks he might have made
a mistake back in 1992, at the first hearing. Dr. Wolf did not
testify to this on the record. Mr. Wiederholts statement seems
to be one more attempt to minimize or re-frame his ethical
lapses, without fully appreciating the harm that he caused.
The Board remains unconvinced that Mr. Wiederholts
conviction that but for my excesses, I believe that I was a good
lawyer . . . demonstrates a real understanding of the harm he
caused in the Metcalf matter and in other matters, or a genuine
feeling of remorse that he came to cause harm. This conclusion
is not much different than, although based on different evidence,
the conclusion reached by the Supreme Court in Wiederholt II.11
B. Present moral fitness.
Present moral fitness is inextricably related to
acceptance of wrongdoing. As this body has previously observed,
Wiederholts failure to acknowledge wrongdoing in the face of
overwhelming evidence to the contrary is evidence that Petitioner
has no greater understanding of his responsibilities as an
attorney for trust, candor and honesty than he did at the time of
disbarment. 12 The Boards reasons for finding that Mr.
Wiederholts appreciation of his own wrongdoing is inadequate lead
us also to the conclusion that his current moral fitness to
practice law has not been proven by clear and convincing
evidence.
The Hearing Committee relies on certain facts to
support its conclusion that moral fitness has been established to
its satisfaction. These include the satisfaction of his current
employer with his performance as a paralegal; his performance in
his volunteer work as an EMT; and Dr. Wolfs professional opinion
that Mr. Wiederholts mental health has improved since 1992.
While all of these are admirable and evidence that Mr. Wiederholt
is avoiding, in his current life, the types of misconduct for
which he was disbarred, it is insufficient under the
circumstances, as this body previously observed: disbarment
conclusively proves lack of moral fitness to practice law at the
time of disbarment and, while not determinative in reinstatement,
it continues to be evidence of lack of moral fitness at later
times.13
Most important to the Boards finding in this respect is
Mr. Wiederholts continuing inability to articulate, in response
to very pointed questions from the Board,
where he went wrong, and how he believes things are now different
and unlikely to go wrong again. To every such question Mr.
Wiederholt equivocates:
I wasnt a bad person. I made some real
mistakes in judgment. For reasons of but
for pride and arrogance, I either chose not
to look at. I dont believe I had then, or
have now, a deep seated psychological
difficulty with telling the truth . . . .
. . . .
I do not believe that I was less a decent
person then, and Im certainly capable of
making a right decision. And I cant tell
you, except for as to time and experience,
as far beyond the practice of law, that have
made me realize that as smart, as slick as I
thought I was back then, that I wasnt. And
if I had to look at a single issue, I couldnt
give you any. Its been a long time.
. . . .
So if I had to guess if I had to go back and
analyze it, it was my inability to see a
bigger more global picture. How my actions
affected more than just my relationship
between me and Mr. Metcalf . . . . I want to
give you a better answer. It was an
inability to see the whole picture.
. . . .
. . . [B]ut for my excesses, I believe that I
was a good lawyer, which is to say my clients
were (indiscernible).
Given that Mr. Wiederholt has devoted untold hours to his pursuit
of reinstatement, and given that he has known, at least since the
Supreme Courts opinion in 2001, what standard would be applied to
the issue of reinstatement, he could have been expected to
formulate the best possible answer to the fundamental question,
what did you do wrong and how do we know you wont do it again?
His vague, equivocal answers under these circumstances leave the
Board with the uncomfortable conviction that Mr. Wiederholt is
still unable to formulate an acceptable answer to that most basic
of questions, an answer that would assure the Board that he has
the current moral fitness to be readmitted to the practice of
law. Mr. Wiederholt has failed to sustain his heavy burden of
persuasion on this issue.
C. Proof that the Petitioners 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.
The ultimate issue, whether Petitioners return to the
practice of law will not jeopardize the Bar, the administration,
or the public interest, is also inextricably related to his
acceptance of wrongdoing, and his present moral fitness. Being
unable to find that Mr. Wiederholt accepts his wrongdoing with
honesty and sincerity, or that he has the present moral fitness
to be readmitted to the practice of law, the Board cannot
perforce find that his readmission will not jeopardize the
interests of the Bar, justice, or the public. While Mr.
Wiederholt has, as many have commented, many talents and many
positive qualities, the equivocal and contradictory nature of his
explanations for the events that lead to his disbarment leave the
Board unconvinced. Because the standard of proof is by clear and
convincing evidence, this is considerably short of that standard.
CONCLUSION
The Disciplinary Board concludes that Mr. Wiederholt
has failed to meet his burden of proof to show his entitlement to
reinstatement to the Bar. The Board recommends to the Supreme
Court that he not be readmitted to the practice of law at this
time.
DATED this 7th day of June, 2007 at Anchorage, Alaska.
Allison Mendel
Member
Disciplinary Board
Joined by: Joe Faulhaber, Chris Cooke, John Tiemessen, Michael
Hurley, William Granger
Not participating: Phillip Pallenberg, Mitch Seaver
In re Wiederholt
Matthew W. Claman, joined by Sidney K. Billingslea and Jason A.
Weiner, dissenting,
In 2002, disbarred attorney Jon Wiederholt petitioned
for reinstatement. An Area Hearing Committee recommended that
the Alaska Supreme Court reinstate Mr. Wiederholt. A divided
Board of Governors, acting in its role as Disciplinary Board,
recommended against reinstatement. Mr. Claman dissented from
that recommendation:
Viewing the evidence in light of the
Pier factors, it appears that Wiederholt has
sought to satisfy these 10 factors, and the
Board has then responded by explaining that
Wiederholts efforts to satisfy these factors
is simply not good enough.
In short, I believe the majority is
looking for reasons to deny Wiederholts re-
application for re-admission in light of
compelling and largely uncontradicted
evidence that supports his readmission.
In re Wiederholt, 89 P.3d 771, 793 (Alaska 2004) (Wiederholt
III).
By a 2-1 vote, two justices not participating, the
supreme court adopted the recommendation of the Disciplinary
Board and denied Mr. Wiederholts petition for reinstatement.
Wiederholt III, 89 P.3d at 771. Justice Carpeneti dissented:
I have concluded that Wiederholt has met the
high standards that we determined in
Wiederholt II that the law imposes for
reinstatement. . . . Almost ten years have
elapsed since the original discipline in this
case was imposed. Because Jon Wiederholt has
met the standards for reinstatement, I
believe that his petition for reinstatement
should be granted.
Wiederholt III, 89 P.3d at 799-800 (Carpeneti, J., dissenting).
In 2006, Mr. Wiederholt again petitioned for
reinstatement. The Area Hearing Committee again recommended
reinstatement. Almost 13 years have passed since the supreme
court disbarred Mr. Wiederholt. A divided Disciplinary Board
again recommends against reinstatement. We dissent from the
Disciplinary Boards recommendation.
The written record submitted to the Disciplinary Board
overwhelmingly supports reinstatement. The weakness that the
majority identifies in recommending against reinstatement is Mr.
Wiederholts testimony under oath before the Disciplinary Board.
One can reasonably criticize Wiederholts responses as being
unpolished and imperfect. Viewing this testimony in the context
of the strong record that supports reinstatement, however, we do
not believe that the imperfections in Mr. Wiederholts testimony
are sufficient to overcome the strong record in favor of
reinstatement.
For the reasons set forth above, the reasons set forth
in Mr. Clamans dissent in Wiederholt III, and the reasons
articulated by Justice Carpeneti in Wiederholt III, the court
should reject the Disciplinary Boards recommendation. The court
should approve Wiederholts petition for admission subject to a
reasonable period of supervised practice.
2 July 2007 Matthew W. Claman
Disciplinary Board Member
Joined by Sidney K. Billingslea and Jason A. Weiner.
BEFORE THE ALASKA BAR ASSOCIATION
AREA HEARING COMMITTEE
THIRD JUDICIAL DISTRICT
In The Reinstatement Matter )
Involving )
)
JON E. WIEDERHOLT, )
)
Petitioner. )
)
ABA Membership No. 8312172
ABA File No. 2006R001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS OF AREA
HEARING COMMITTEE
On September 11, 2006, a hearing was held before the
Area Hearing Committee Panel (the Panel) assigned to hear the
above-referenced Petition for Reinstatement. Based upon the
testimony of the witnesses, the record of the prior proceedings,
the briefing and arguments of counsel and all other matters in
the record, the Panel hereby makes the following Findings of Fact
and Conclusions of Law, and Recommendations to the Disciplinary
Board:
FINDINGS OF FACT
1. Petitioner, Jon E. Wiederholt, was disbarred from
the practice of law in the State of Alaska by Order of the Alaska
Supreme Court, dated July 8, 1994. The factual basis and
circumstances leading to the Courts action are set forth in the
case of In Re Disciplinary Matter Involving Wiederholt
(Wiederholt I), 877 P.2d 765 (Alaska 1994).
2. Since the date of his disbarment in 1994,
Petitioner has filed four Petitions for Reinstatement with the
Alaska Bar Association. This is Petitioners fourth Petition for
Reinstatement. The procedural history of this matter is
summarized below for ease of reference:
Date Pleadings Action
33947 Area Hearing Panels Upheld Grievances
Decision on Bar Association
Grievances
34021 Area Hearing Panels Recommended Disbarment
Findings and
Recommendations on
Sanctions
34129 Disciplinary Boards Adopts Hearing Panels
Recommendations Recommendation of
Disbarment
34522 Alaska Supreme Court Affirms Disciplinary
Decision Boards Recommendation of
877 P.2d 765 (Alaska 1994) Disbarment
(Wiederholt I)
36332 1st Petition for
Reinstatement
36558 Area Hearing Panels Recommended Denial of
Decision on 1st Petition Reinstatement
for Reinstatement
36594 Disciplinary Boards Adopts Findings and
Findings, Conclusions, and Conclusions of Area
Recommendation on 1st Hearing Committee, and
Petition for Reinstatement Recommends Denying
Reinstatement
37056 Alaska Supreme Court Affirmed Disciplinary
Decision Boards Decision Denying
24 P.3d 1219 (Alaska 2001) Reinstatement
(Wiederholt II)
37313 2nd Petition for
Reinstatement
37573 Area Hearing Panels Recommended Reinstatement
Findings of Fact,
Conclusions of Law, and
Recommendations of Area
Hearing Committee Panel
37752 Disciplinary Boards Rejects Area Hearing
Recommendation on 2nd Committees
Petition for Reinstatement Recommendation;
Recommends Denying
Reinstatement
38159 Alaska Supreme Court Affirmed Disciplinary
Decision Boards Decision Denying
89 P.3d 771 (Alaska 2004) Reinstatement
(Wiederholt III)
38507 3rd Petition for
Reinstatement
38547 Alaska Supreme Court Rejected or Dismissed 3rd
Petition as untimely
under Bar Rule 29
38829 Motion for Summary
Reinstatement filed with
Alaska Supreme Court
38889 Alaska Supreme Court Denied Summary
Reinstatement and
Remanded to Bar
Association for further
proceedings
38897 Motion for Summary
Reinstatement 4th Petition
for Reinstatement
39020 Area Hearing Panels Majority recommends
Decision on 4th Petition reinstatement
for Reinstatement
3. Prior to the hearing in this matter, Petitioner
filed a motion for summary judgment regarding psychiatric
stability and fitness to practice. The motion requested to
summarily establish five elements with respect to Petitioners
reinstatement: (1) that sufficient time has elapsed since his
prior hearing in 2002 to adequately evaluate Petitioners mental
health for purposes of these proceedings; (2) that Petitioner has
fully complied with the supreme courts directive to seek, obtain
and successfully complete counseling; (3) that Petitioner was
mentally fit to practice law as of the hearing in 2002; (4) that
Petitioner was mentally fit to practice law as of Dr. Wolfs
September 2004 affidavit; and (5) that Petitioner is today fully
mentally fit and capable of practicing law. The Panel deferred a
ruling on this motion until after the hearing.
4. More than five years has passed since Petitioners
disbarment in 1994, and the Petitioner was last denied
reinstatement on 6/22/04. Pursuant to Alaska Bar Rule 29(c)(2),
more than two years must pass before the petitioner can seek
reinstatement after a reinstatement petition has been denied. As
more fully set out in Conclusion of Law No. 1, the Hearing Panel
finds that, pursuant to Alaska Bar Rule 29(b)(5), more than two
years has passed since the effective date of the Courts most
recent order denying reinstatement, and therefore, Petitioner is
factually and legally eligible to be considered for readmission
to the practice of law.
Summary of Testimony
5. Petitioner presented testimony from several
witnesses at the hearing, who testified to the following:
a. Josh Fink. Mr. Fink is the head of the
Office of Public Advocacy (OPA) and has employed Mr. Wiederholt
as a Paralegal II for approximately two years. During that time,
Mr. Wiederholts duties have included performing criminal case
assignments, legal research and drafting, as well as supervising
the civil paralegal I, and assisting her with the
child-in-need-of-aid and juvenile delinquency cases. According
to Mr. Fink, Mr. Wiederholt divulged his disbarment background
during his initial interview for the paralegal position, and at
that time, appeared to be remorseful for his bar difficulties.
Because Mr. Fink was not previously aware of Mr. Wiederholts
disbarment history, Mr. Fink then specifically followed up and
researched Wiederholts background regarding the disbarment, and
subsequently decided to hire Mr. Wierderholt as the criminal
paralegal for the office. Upon hiring Mr. Wiederholt, Mr. Fink
placed Mr. Wiederholt on probation for six months, because he was
concerned about the conduct discussed in the Court opinions, and
wanted to see if Wiederholts performance matched the Courts
discussed behavior, or rather matched or was consistent with Mr.
Finks reading of Wiederholts apparent rehabilitation. Mr. Fink
testified that Wiederholt passed [his probation] with flying
colors, so Mr. Fink made Wiederholts paralegal position
permanent. In his daily duties, Mr. Wiederholt performs criminal
case intake, conflict checks with the public defender, contact
with agency contract counsel, and has substantial contact with
clients, many of whom were incarcerated. When asked if Mr. Fink
would be comfortable sending this type of conflict work to Mr.
Wiederholt should he be reinstated and subsequently left the
agency to work independently, Mr. Fink testified:
I would. Hes worked with criminal clients,
my most difficult clients who call regularly.
Theyre often unhappy with their counsel,
their counsel theyre not paying for. And
many of them have mental health issues and
substance abuse issues and will call
repeatedly and same complaints, and he has
worked with them well. He is patient,
listened to them, been a calming influence in
many cases, directs them where they need to
go, briefs me to the extent I need to be
briefed so I can contact them and follow up.
Hes done a good job working with the clients.
Despite the trying nature of the client contact, Mr.
Fink observed that Mr. Wiederholt always treated the clients with
respect and dignity, which, Mr. Fink explained, was not always an
easy task. Mr. Fink further stated that Mr. Wiederholt was
better at communicating with the clients than some of the
attorneys in the office.
With regard to how Mr. Wiederholt handled the high
stress environment in the OPA office, Mr. Fink stated:
. . . [i]t can be a fairly high-stress
environment in our office with many demands
on your time, not the least of which is
responding to these clients. And he . . . I
mean, Ive witnessed it in a very stressful
situations where were just swamped and
overloaded. He has maintained a professional
demeanor and handled himself with the clients
very well and interacted with them very well.
Mr. Fink indicated that part of his job as the OPA
supervisor is to evaluate the performance of numerous OPA
employees, and that in the past, he has had to fire some
employees. Mr. Fink testified that Mr. Wiederholt is a very good
employee who has excellent research and writing skills, and that
if Mr. Wiederholt was reinstated, Mr. Fink would be willing to
initially refer OPA misdemeanor and Class C felony cases to Mr.
Wiederholt as outside legal counsel, until he gained more
experience. Mr. Fink stated that he believed Mr. Wiederholts
acceptance of his wrongdoing was sincere, and that he had no
reservations in recommending Mr. Wiederholt for reinstatement.
b. William Gamble. Mr. Gamble works full-time
as an air traffic controller at the FAA in Anchorage, and also is
the District Fire Emergency Services Chief for the
Matanuska-Susitna Borough. He supervises two fire departments,
which include four fire stations and approximately 4060 paid and
on-call volunteer responders. Mr. Gamble testified about his
work relationship with Mr. Wiederholt, and stated that he first
met Mr. Wiederholt in August 2000, when Mr. Wiederholt began
volunteer work as an Emergency Medical Technician I, and has
continued to work with Mr. Wiederholt up to the present time.
Mr. Gamble testified that in addition to Mr. Wiederholts full-
time day job at OPA in Anchorage, Mr. Wiederholt works three
evening shifts per week (6:00 p.m. to 6:00 a.m., Tuesday,
Saturday, and Sunday) as a volunteer EMT in the Valley. Chief
Gamble stated that during the last six years, Mr. Wiederholt has
continued his EMT training, so that now Mr. Wiederholt is one of
the few volunteers who has achieved the EMT III level, as well as
being trained as a rescue technician who is qualified to use the
jaws of life in automobile crash situations. In addition, Mr.
Wiederholt has also started additional training as a firefighter.
Regarding Mr. Wiederholts quality of work, Mr. Gamble
testified that Mr. Wiederholt wears a 24-hour pager, and will
always go on call and will stay until the work is done. Mr.
Gamble testified that Jack is the go-to guy in the department,
who is always willing to do the difficult assignments. Mr.
Gamble further testified that Mr. Wiederholt has spent thousands
of hours since 2000 working as a volunteer medic, and is now a
lead medic in the department. Mr. Gamble stated that his
paramedics regularly experience extremely stressful situations on
a daily basis. He has been with Mr. Wiederholt in numerous life-
and-death situations, and has observed that Wiederholt handles
stress better than most, and has always acted in a rational
manner and never showed any anger management issues. Mr. Gamble
has found Mr. Wiederholt to be compassionate, patient, and
understanding of the patients pain, and believes that Jack is the
last person to quit working on a patient. Mr. Gamble stated that
as paramedics, he and his crew are constantly placed in danger
from patients who are often violent due to meth labs, injury or
drug overdose, and because of this, they take care of each other.
Based upon Mr. Gambles work experience with Wiederholt as a
paramedic, Gamble testified that he would trust Mr. Wiederholt
with his (Gambles) life.
Mr. Gamble testified that in the last six months, he
has discussed with Mr. Wiederholt his actions that resulted in
his disbarment, and that Gamble believes Mr. Wiederholt took
unqualified responsibility for his actions in those
conversations, and did not blame others for his mistakes. Mr.
Gamble believes that the disbarment was a humbling experience for
Mr. Wiederholt, and that in his (Gambles) opinion, he believes
that Mr. Wiederholt has sufficient moral backbone to be
reinstated as a lawyer.
c. Laurel Peterson. Mr. Peterson is an attorney
in Anchorage and has been admitted to practice since 1974. He
served as a District Court Judge in the mid- 70s, and has been in
private practice since then. He has known Mr. Wiederholt since
approximately 1993, and has testified twice before on his behalf.
Prior to 1994, he had contact with Mr. Wiederholt as opposing
counsel, and found Mr. Wiederholt to be overly aggressive and
harsh, both personally and in his written work. After Mr.
Wiederholts disbarment, Mr. Wiederholt began to work for Mr.
Peterson as a paralegal performing research and writing. At the
beginning of their association, Mr. Wiederholts legal writing was
not up to Mr. Petersons standards, in that the writing was overly
harsh and aggressive, and personally attacking to opposing
counsel. Over the years of their association, Mr. Peterson has
counseled Mr. Wiederholt on neutralizing his writing style, and
believes that Mr. Wiederholt has listened and incorporated these
suggestions, and ultimately has changed his writing style, so
that Mr. Peterson has continued to use Mr. Wiederholt on several
projects. And, although the press of work created stressful
situations at times, Mr. Peterson never observed Mr. Wiederholt
to exhibit an anger management problem. Mr. Wiederholt has
expressed remorse to Mr. Peterson for the conduct leading to his
disbarment, which Mr. Peterson believes to be sincere. Over the
last six years of working very closely with Mr. Wiederholt, Mr.
Peterson believes that Mr. Wiederholt has been rehabilitated, and
has the legal ability, skills, and moral fitness to be reinstated
to the practice of law. Mr. Peterson believes that Mr.
Wiederholts disbarment has caused Wiederholt to learn to reflect
on his conduct, which has had a beneficial effect on Petitioner.
Mr. Peterson does not believe that the public is at risk if Mr.
Wiederholt is reinstated.
d. Ron Offret. Mr. Offret is an attorney and
partner in the law firm of Aglietti, Offret, and Woofter, and has
been admitted to practice since 1974. Mr. Offret testified that
he did not become acquainted with Mr. Wiederholt until the last
10 years, after the disbarment. He testified that he has had Mr.
Wiederholt work with him performing legal research and writing on
a few cases, and that Petitioner is currently assisting him with
an appeal to the 9th Circuit Court of Appeals. He has not
previously testified in any Wiederholt proceeding. He has found
Mr. Wiederholts work to be competent and thorough. Mr. Offret
was familiar with Mr. Wiederholt during his first and second
petitions for reinstatement, and believes that in the intervening
years, that Mr. Wiederholt has changed. Mr. Offret trusts Mr.
Wiederholt and believes him to be an honest person, and testified
that he would hire him as a lawyer in his office. He believes
that Mr. Wiederholt has accepted responsibility for his past
actions, and that he has the moral fitness to be reinstated to
the practice of law. Mr. Offret does not believe that
reinstatement would be detrimental to the bar, public, or the
administration of justice.
e. Robert Woofter. Mr. Woofter is an attorney
and partner in the law firm of Aglietti, Offret, and Woofter, and
has been admitted to practice in Alaska since 1986. He has known
Mr. Wiederholt since the mid-80s, and at that time, found him
abrasive, arrogant, and difficult to deal with, describing him as
a real jerk. He became reacquainted with Mr. Wiederholt in 2002,
when Mr. Wiederholt began working with other attorneys in
Woofters office, and in course of Petitioners working on cases in
the office, found Mr. Wiederholts legal skills more than
competent. Mr. Woofter testified that when Mr. Wiederholt began
working in the office, he was a bit wary of him, and that in
their discussions about Mr. Wiederholts disbarment situation, he
(Woofter) consciously tried to determine if Wiederholt was truly
remorseful, or only sorry because he got caught. After working
with and observing Mr. Wiederholt over the last few years, Mr.
Woofter testified that he personally found Mr. Wiederholt to be
forthcoming about the facts of his disbarment, and felt that
Wiederholt has really shown true remorse. He also believes that
he can now see an element of compassion in Wiederholts
personality that was not there before. In Mr. Woofters opinion,
he believes that Mr. Wiederholt is morally fit to return to the
practice of law and does not believe that any harm would happen
to the Bar Association or the public if Wiederholt was
reinstated.
f. Lisa Behrens. Ms. Behrens also works for the
FAA in Anchorage and as an EMT in the Mat-Su Valley. She has
known Mr. Wiederholt since 2002, and became acquainted with him
when he was her EMT instructor. During the course of their EMT
work together, they have become romantically involved. Once she
learned of his disbarment, she researched and read the Alaska
Supreme Court legal cases and familiarized herself with the
underlying conduct leading to the disbarment. She has discussed
the disbarment situation with Mr. Wiederholt and he has expressed
remorse which she believes is sincere, in that he accepted
responsibility and understood that other people got hurt from his
conduct. She testified that as EMT IIIs, they handle many types
of stressful situations, including responding to emergency calls
where they routinely clean up vomit, urine, and other body
fluids, and often are unable to save patients. Through their EMT
work together, she has had many opportunities, including life-and-
death situations, to observe how Mr. Wiederholt handles stress,
and believes he handles stress very well. She agrees that Mr.
Wiederholt is the go-to guy in the department, in that he does
not avoid combative patients and does not cherry-pick the easy
emergency calls. She testified that he has always treated the
patients with patience and respect, and has never seen him
exhibit anger problems. In Ms. Behrens experience, she has not
seen Mr. Wiederholt exhibit the type of conduct discussed in the
previous court cases, and believes that it is highly unlikely
that he would repeat similar conduct.
g. Aaron Wolf. Dr. Wolf is a psychiatrist in
Anchorage, where he has practiced for many years. He has
submitted materials and testified in every disbarment and
reinstatement proceedings involving Mr. Wiederholt. He first
evaluated Mr. Wiederholt at the request of the Alaska Bar
Association in the context of the disbarment proceeding in
approximately 1992. In that proceeding, he testified that Mr.
Wiederholt suffered from a personality disorder that caused him
to be rigid, hostile, lacking in trust, and making it difficult
for him to compromise. When confronted with disagreement over
issues, Petitioner could become aggressive and argumentative.
Subsequently, Dr. Wolf performed a further evaluation on Mr.
Wiederholt in 1999, this time at Mr. Wiederholts request, to
support his first petition for reinstatement. In the 1999
report, Dr. Wolf stated that in his opinion, Mr. Wiederholt had
improved medically, and could return to the practice of law, but
Dr. Wolf recommended that he be supervised and not practice
alone. In response to the first petition for reinstatement, the
Alaska Supreme Court denied Wiederholts . . . petition in 2001.
Shortly thereafter, and in response to the Courts comments in the
opinion, Mr. Wiederholt then began professional counseling on a
once or twice a month basis, with Dr. Wolf.
Mr. Wiederholt then filed a second petition for
reinstatement in 2002, and Dr. Wolf again met with Mr. Wiederholt
to prepare his evaluation. Dr. Wolf then testified at the second
petition for reinstatement hearing in 2002, and provided a third
opinion concerning Mr. Wiederholts progress. During the 2002
hearing, Dr. Wolf testified that Mr. Wiederholt had matured in
the previous 10 years since the disbarment hearing. Mr.
Wiederholt had initiated his paramedic training, and had
progressed from an EMT I to an EMT II at that point, and was
learning how to be part of a team and be on the giving side of
others. Dr. Wolf felt that Mr. Wiederholt had made significant
changes in his life, and had grown as an individual since 1999,
and now felt that Mr. Wiederholt would be safe to practice law
and act as a sole practitioner. In Dr. Wolfs opinion, Mr.
Wiederholt was symptom-free, and that mental health-wise, there
was no medical impediment to Mr. Wiederholts reinstatement.
With regard to the current fourth petition for
reinstatement, Dr. Wolf again was contacted by Mr. Wiederholt to
perform an updated evaluation of him as of 2006. Dr. Wolf
testified that he had met with Mr. Wiederholt for several
sessions in order to evaluate his mental health status and
provide his opinions during this reinstatement hearing. Dr. Wolf
testified that as of the 2006 evaluation, he found Mr. Wiederholt
to exhibit a calmer demeanor and to be doing very well from a
mental health standpoint, and that he doesnt need any mental
health intervention. In the course of their counseling sessions,
Dr. Wolf believed that Mr. Wiederholt had fully accepted
responsibility for the harm he caused to clients, other lawyers,
the Bar Association, and the public in general. Dr. Wolf stated,
Mr. Wiederholt . . . has done a great
deal of maturing over these years. The
diagnosis of personality disorder is one that
if you take a snapshot, its not supposed to
go away, if you will. But what Ive seen with
Mr. Wiederholt is that sort of snapshot of my
initial thing [sic] showed somebody who was
in an immense amount of turmoil, not
functioning very well. And then by the time
that I then saw him at the end of the 90s and
from now on has really matured, grown up, not
showing any of that behavior and/or types of
thinking that he had 15, 16 years before.
And, regarding Mr. Wiederholts ability to deal with a stressful
environment, Dr. Wolf went on to state:
He now has a history of working for Mr.
Fink and his agency in a pressure cooker kind
of environment and, at least according to Mr.
Wiederholt, he has been enjoying that and his
perception is that hes been doing well in
that without any rising of the old kinds of
feelings.
In Dr. Wolfs opinion, there was no medical reason why Mr.
Wiederholt could not return to the practice of law.
h. Jon Wiederholt. Mr. Wiederholt testified in
this proceeding, and on many points, his testimony was similar to
the testimony given in previous reinstatement proceedings. His
testimony in this proceeding differed from his testimony in 2002
because he appeared either to have gained more insight into the
reasons for his prior misconduct, or was better able to
communicate his feelings about his lack of previous insight. He
testified that he believed that his personality characteristics
of arrogance and pridefulness contributed to his past misconduct,
and that he hoped he was a better person now than he was then.
In attempting to explain his prior demeanor and misconduct
towards others, he stated:
. . . if I could step out of my skin and
look back at myself, if you derive a measure
of success from being a bully in law and you
keep having success because you do that, it
doesnt change. You get worse. So the time
to get it is is early on. . . . The problem
lies in getting that lawyer to listen, which
was my problem.
When asked by counsel if he still felt that his arrogance and
pridefulness were qualities that caused his misconduct,
Wiederholt stated:
I guess that I would add to that some
measure of blindness. I my oldest son, no
offense, but I see in him a person that was
very much like the person I was, where I knew
more than anyone could tell me and I was
right and no one could tell me otherwise.
And I think so theres a measure of blindness
in there. Maybe its maybe its arrogance, I
suppose, or maybe its the fear of being
wrong, or admitting it.
Wiederholt went on to further explain that he believed his self-
enforced isolation from
other attorneys may also have contributed to his misconduct and
errors in judgment:
And you know, theres some analogies, at
least I see with my oldest boy, about what
maybe should have happened with me, which I
wish could have. And insulating myself from
colleagues or, you know, practicing law by
myself. And I mean that in the sense of I
didnt ask for permission and I didnt speak to
colleagues. So in some sense, I guess I
analogize it to a child that needs to have a
painful enough lesson to realize that they
really dont know anything.
Wiederholt testified that he felt sincere regret about the harm
he caused to his clients, the Court, the Bar, and the public,
stating:
Actually, what I regret is two things.
I regret the harm that it caused and I think
in some sense to a greater degree, what I
regret more so is my inability to see that.
Throughout his testimony, Wiederholt appeared to exhibit a
greater understanding of the bigger picture of the law. In
response to Bar counsel, Petitioner stated:
Well, if you draw bright-line
distinctions between did I get a just result
or did I win for my client. I think that was
part and parcel the mistake that I made when
I practiced, is that I took the black-and-
white view that youre suggesting that there
is. And I dont I dont see it that way. I
dont see it as being I win and you lose. In
this proceeding, I dont see that you win if I
dont get readmitted. I dont see that I win
if I do. I mean, if if we do what were
supposed to do as lawyers, it isnt supposed
to be a win or lose. Its supposed to were
supposed to get the right result. Were not
going to have people that are happy with it,
but we wouldnt have people happy with it if
we were referees at a soccer game.
And, when asked by Bar counsel what tools or skills he would
bring to the practice of law, if reinstated, to prevent a
recurrence of the previous abusive behavior that may have been
exacerbated by stress, Wiederholt answered and referenced
incidents from his Sunday paramedic duty that occurred the
previous day, before the reinstatement hearing. He and Chief
Gamble had previously testified about the loss of two patients (a
man and a small infant, on whom he performed CPR for 45 minutes,
where both attempts to revive the patients were unsuccessful).
In response to Mr. Van Goors question, Wiederholt testified:
Drawing from other parts of my life, Mr.
Van Goor, there is nothing we do as attorneys
this is what I didnt see before. Theres
nothing that we do as attorneys that warrants
the kind of response I had before, other than
perhaps some sort of personal satisfaction I
might take in making the other side feel bad.
But when you deal with things that that I
that Ive trained for and, like most recently
yesterday, dealt with, like I say, it just
makes what we do as attorneys, in a global
sense, not so worth the emotional response.
. . . .
. . . But I think that my experiences with
things that are so much more life-altering,
if thats the right way to say it, I just cant
take myself quite so seriously.
Additionally, Wiederholts testimony appeared to illustrate that
his experiences of working with other lawyers and as a paralegal
with OPA, caused him to talk to, and deal with, other clients and
lawyers who may have acted like he had towards others in the
past, which helped him to realize, and really regret [the kind of
person] that I must have been.
CONCLUSIONS OF LAW
1. Jurisdiction to Maintain this Action. Alaska Bar
Rule 29(b)(5) provides as follows:
. . . An Attorney who has been disbarred by
order of the Court may not be reinstated
until the expiration of at least five years
from the effective date of the disbarment.
Unless otherwise ordered by the Court, an
attorney who has been denied reinstatement by
the Court from disbarment or suspension may
not file a petition for reinstatement until
the expiration of at least two years from the
effective date of the Courts most recent
order denying reinstatement.
Petitioner was disbarred on July 8, 1994. His second petition
for reinstatement was denied by the Alaska Supreme Court on June
22, 2004, in Wiederholt III, and was the most recent order
denying reinstatement. Wiederholt then filed a Motion for
Summary Reinstatement directly with the Alaska Supreme Court on
April 23, 2006, which was before the expiration of the two-year
waiting period after the effective date of the Courts most recent
order denying reinstatement on June 22, 2004. The Court
subsequently denied Petitioners Motion for Summary Reinstatement
on June 22, 2006, and referred the matter to the Bar Association,
to consider the matter as a petition for reinstatement pursuant
to Alaska Bar Rule 29(c). The current motion for summary
reinstatement, now considered petitioners fourth petition for
reinstatement in this proceeding, was referred to the Bar
Association on June 22, 2006, exactly two years since the
effective date of the Courts previous order denying
reinstatement. Therefore, under Alaska Bar Rule 29(b)(5), the
Panel finds that Wiederholt is legally qualified to maintain and
pursue this fourth petition for reinstatement.
2. Under Alaska Bar Rule 29(c)(1), an attorney who
has been disbarred for more than two years must file a petition
for reinstatement with the Bar Association and prove by clear and
convincing evidence that (1) he has the moral qualifications,
competency, and knowledge of law required for admission to the
practice of law in the State and that his 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[.]
3. The Alaska Supreme Court expanded on the legal
standards which must be met for reinstatement in Wiederholt II,
the Court adopted certain legal principles in analyzing a
petition for reinstatement. Specifically, the court found that
(1) there is a presumption against reinstatement, and (2) the
Petitioner has the burden of proof in the proceeding, and must
show by clear and convincing evidence that he has satisfied the
standards for reinstatement.
The Wiederholt II court also identified the ten factors
listed in In re Pier, 561 N.W.2d 297, 299 (S.D. 1997), as
providing useful guidance in any reinstatement inquiry. The Pier
standards for reinstatement include the following:
(a) The nature and seriousness of the original
misconduct.
(b) The Petitioners conduct following the
discipline.
(c) The time elapsed since the original
discipline.
(d) The extent of the Petitioners rehabilitation.
(e) The Petitioners character, maturity, and
experience at the time of the discipline and at present.
(f) Restitution.
(g) The Petitioners acceptance of wrongdoing with
sincerity and honesty.
(h) The Petitioners current competency and
qualifications to practice law.
(i) The Petitioners present moral fitness.
(j) Proof that the Petitioners 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.
4. The Panel has analyzed the evidence presented and
has applied the Pier factors as follows:
(a) The nature and seriousness of the original
misconduct. The Panel finds the Petitioners original misconduct
to be within the class of the most serious type of misconduct
that would justify disbarment. The conduct involved dishonesty
(forging anothers signature on a check), intentional written and
oral misrepresentations to the Court, Bar Counsel, and
Disciplinary Board, verbally abusive conduct towards counsel and
witnesses, physical assault against opposing counsel, and
obstructionist and abusive discovery tactics in litigation
practice. The aggravators of this conduct include the fact that
it occurred over a several year period of time involving several
incidents and people. A mitigating factor is the fact the
conduct which is the subject of these proceedings happened a long
time ago, beginning in approximately 1986-1987, and ending in the
early 1990s, over fourteen years ago.
(b) The Petitioners conduct following the
discipline. Since the date of Mr. Wiederholts disbarment in
1994, he has been employed in the legal field, although he has
not practiced law since his disbarment. He has worked in
construction, as a limousine driver, paralegal, Emergency Medical
Technician I, II, and III, and is currently training to become a
firefighter. Since August 2000, he has volunteered thousands of
hours performing EMT work in the Mat-Su Valley, and is considered
a lead medic and go-to-guy by the Chief of the Department. He is
also held in high regard by the many senior attorneys for whom he
has worked. In sum, Mr. Wiederholt has used the time since his
disbarment to continue to maintain and improve his legal skills,
as well as to initiate and pursue training in the new field of
emergency medicine. The Panel finds that Mr. Wiederholt has used
the time since his disbarment in a constructive manner and has
contributed back to the community through his volunteer EMT work.
(c) The time elapsed since the original
discipline. The conduct at issue here occurred over a span of
several years, beginning in approximately 1986-1987, almost
twenty years ago, and ending in the early 1990s, over fourteen
years ago. The Petitioner was disbarred in July 1994, over
twelve years ago. The initial five year disbarment period has
been followed by an additional period of seven years, which, in
conjunction with his previous reinstatement denials, has allowed,
or forced, Petitioner to take additional time to consider the
seriousness of his conduct and the consequences, and hopefully,
to reflect upon the reasons that motivated him to behave in the
manner that originally got him into trouble. The additional two
year period of disbarment since the last denial of reinstatement
in Wiederholt III in 2004, in particular, appears to have allowed
Petitioner to gain additional insight into the nature of his
previous conduct. The Committee Panel finds that this additional
two year period performed a concrete rehabilitative function by
providing Petitioner with an additional opportunity to take his
blinders off and to learn to see outside of himself.
(d) The extent of the Petitioners rehabilitation.
As previously stated, Mr. Wiederholt has continued to work in the
legal field as a contract lawyer performing work for senior
attorneys. Through their mentoring, the evidence has established
that Mr. Wiederholt has improved his legal writing techniques so
that he refrains from including personal attacks in his written
briefing. All of the attorneys who testified, including Mr. Fink
as a current supervisor, stated that Mr. Wiederholt presents a
calmer and more professional demeanor than the behavior they
either personally experienced in the mid-80s, or described by the
Court in Wiederholt I. Mr. Wiederholt has also participated in
mental health counseling with Dr. Wolf in approximately 2002 for
approximately 1418 sessions, and recently underwent an additional
evaluation in preparation for this proceeding. Lastly, Mr.
Wiederholt has also continued his rehabilitative efforts by
progressing with his EMT training to the EMT III level, and with
his contribution of working thousands of hours as a paramedic
since 2000. He also has apologized to the persons affected by
his conduct. In the Panels view, Mr. Wiederholt has established
by clear and convincing evidence that he has made substantial
efforts to accomplish the goal of rehabilitation and is
rehabilitated.
(e) The Petitioners character, maturity, and
experience at the time of the discipline and at present. Part of
the troubling aspect of this case is trying to understand the
reasons for Petitioners underlying misconduct which resulted in
disbarment. The Panel agrees that the misconduct was not merely
a product of Petitioner being a new or inexperienced lawyer, but
rather appears to have been caused by a combination of factors,
including extreme immaturity, rigidity, and isolation. In the
time since the imposition of the discipline to the present,
Petitioner has matured in his emotional development, has trained
to learn a new and demanding EMT profession, and has worked with
a variety of lawyers. All of these activities have benefited
Petitioner, caused him to mature, and contributed to his
rehabilitation.
(f) Restitution. Although monetary restitution
was not an issue in this matter, Petitioner certainly has the
responsibility to provide some type of moral restitution to the
people affected by his conduct. Although Petitioner initially
failed to perceive the need to make full apologies during his
disbarment period prior to his first petition for reinstatement,
he did take guidance from the Courts opinion in Wiederholt II and
has made both written and verbal apologies to the persons
involved. Although it would have been preferable for Petitioner
to have realized on his own, from his own inner conscience or
moral compass, that apologies to the people he hurt were
obviously necessary in order to show remorse, prove
rehabilitation, and establish that he had learned his lesson, the
Panel does not find that the fact that the apologies were made in
direct response to the Courts opinion diminishes the fact that
they were made. The Panel accepts Petitioners testimony that,
although it took him awhile, he finally did understand the
necessity of apologizing to his victims, and that he made sincere
efforts to do so.
(g) Acceptance of Wrongdoing with Honesty and
Sincerity. All of Petitioners witnesses testified that he
accepted his past wrongdoing with honesty and sincerity. From a
review of the record, it appeared as though during the initial
term of his disbarment, Mr. Wiederholt appeared to focus only on
the ending date of his disbarment as a time when he would get his
license to practice back, rather than working through, or
accepting, his role in the debacle. He appeared to misdirect his
efforts on arguing to get his license to practice law back,
rather than proving that he had reformed and had acquired the
necessary qualities to be able to perform properly as a lawyer.
His disbarment time would have been better spent receiving
professional medical counseling to discover what personality
traits and emotional reasons caused him to act in the way he did.
Mr. Wiederholt clearly appeared to be in denial for years about
the seriousness of his disbarment misconduct, and only because of
the rejections of his reinstatement requests, did he finally
realize that he was not presenting himself in a light in which
the Disciplinary Board or Court could have confidence, and that
perhaps he needed to change.
In the present reinstatement hearing, a majority of the
Panel finds that Mr. Wiederholt established his acceptance of his
past wrongdoing with honesty and sincerity. In addition to the
witnesses who provided credible evidence of their unqualified
opinions regarding his sincere remorse, a majority of the Panel
was persuaded that Mr. Wiederholt does feel honestly and
sincerely sorry about his prior misconduct. Mr. Wiederholt
appeared to honestly assess and discuss his difficulty in gaining
insight into himself, and seemed to realize that he suffered in
the past from a sort of blindness and inability to see how his
conduct affected others. In the Panels view, it appears as
though the passage of time since his disbarment and his increased
maturity have allowed him to develop the necessary introspective
skills which will prevent similar misconduct in the future.
(h) The Petitioners current competency and
qualifications to practice law. The Panel finds that Petitioner
has established by clear and convincing evidence that he
currently possesses the requisite competency and qualifications
to practice law. Numerous witnesses testified that Petitioner
has excellent legal analytical skills and is competent and
qualified to practice law. In the past four years, Petitioner
has been working as a contract paralegal for several Anchorage
attorneys who have extensive legal experience, including Terry
Aglietti, Ron Offret, Laurel Peterson, and Robert Woofter. All
testified that Petitioner was competent, and that his writing
skills had improved and were more professional. In addition, in
the last two years, Petitioner has worked as a paralegal for the
Office of Public Advocacy under the supervision of Josh Fink.
Mr. Fink testified that during his employment at the agency,
Petitioner has performed legal research and writing for him, and
in his opinion, possessed the legal skills necessary to practice
law. All of the attorneys who testified stated that they would
be willing to hire Petitioner as an attorney based upon his legal
reasoning ability and writing skills.
(i) Present Moral Fitness. A majority of the
Panel finds by clear and convincing evidence that Petitioner has
proved that he has the present moral fitness to be reinstated to
the practice of law. The senior attorneys who have worked with
him over several years have all testified that Mr. Wiederholt is
morally fit to return to the practice of law. Mr. Fink, who did
not know of Mr. Wiederholt or his previous disbarment until he
interviewed him, formed his opinion of Mr. Wiederholt over the
last two years that Petitioner has worked for him. Mr. Fink
testified that Wiederholt was an excellent employee and
communicated with some of the most difficult clients better than
some of the attorneys in the OPA office, and always exhibited a
professional and patient demeanor towards others. Mr. Fink
stated that he would be happy to hire Mr. Wiederholt as an
attorney if Petitioner was reinstated to practice law.
Additionally, Chief Gamble has worked with Mr. Wiederholt over
the last six years as a paramedic. Mr. Wiederholt has worked his
way up from an entry level EMT I to where he now is a lead medic
as an EMT III and a rescue technician. He has observed Mr.
Wiederholt numerous times administer to patients who were in a
life-threatening situation (some of whom died), and stated that
he always observed Mr. Wiederholt act in a very patient and
professional manner. Lastly, Dr. Wolf testified that his opinion
of Mr. Wiederholts mental health now in 2006 differs from his
opinion of Petitioner in 1992. Dr. Wolf believes that Mr.
Wiederholt has matured and is functioning well, and he has not
seen any evidence of the types of thinking or behavior Petitioner
previously exhibited. In Dr. Wolfs opinion, there is no medical
reason why Mr. Wiederholt could not return to the practice of
law. Based upon the evidence presented, the Panel finds that
Petitioner has established by clear and convincing evidence that
he is presently morally fit to return to the practice of law.
(j) Proof that the Petitioners 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. A majority of the Panel finds
by clear and convincing evidence that Petitioners return to the
practice of law will not be detrimental to the integrity and
standing of the Bar, the administration of justice, or subversive
of the public interest. Because of the seriousness of
Petitioners underlying misconduct, including forgery, and his
repeated petitions for reinstatement which were denied due to his
failure to either accept the seriousness of his misconduct or to
perceive the need to apologize and make positive amends for his
behavior, there may always be a concern about whether Petitioner
can ever provide enough evidence or guarantee that he will not
re-offend. And while some may believe that Petitioner should
never be eligible to be reinstated based upon his prior
misconduct, the legal standards in Bar Rule 29 and the Pier
factors in Wiederholt I provide standards, which if met by clear
and convincing evidence, allow a petitioner to be reinstated.
The evidence presented here by the Petitioner establishes that he
has excellent legal skills, is a hard worker, is helpful in
discussions concerning tactics and strategies, and is highly
thought of by his past and current employers, all of whom would
be willing to hire him in the future and recommend him for
reinstatement. Petitioners mental health professional finds no
medical reason why he cannot return to the practice of law.
Petitioner has apologized to the victims of his misconduct. And
lastly, he has worked in a non-legal volunteer capacity providing
thousands of hours of paramedic work to the public for the past
six years.
Although one cannot predict the future, taken all
together, a majority of the Panel finds that under Alaska Bar
Rule 29(c)(1), Petitioner has established by clear and convincing
evidence that he has the moral qualifications, competency, and
knowledge of law required for admission to the practice of law,
and that his resumption of the practice of law in this state will
not be detrimental to the integrity and standing of the Bar, the
administration of justice, or subversive to the public interest.
5. With respect to Petitioners motion for summary
judgment regarding psychiatric stability and fitness to practice,
the Committee Panel grants the motion in part, and finds with
regard to issue #1, that sufficient time has elapsed since Mr.
Wiederholts 2002 hearing to adequately evaluate his mental health
for purposes of this proceeding, and on issue #5, that at the
present time of this hearing, Mr. Wiederholt is mentally fit and
capable of practicing law. The Panel denies summary judgment on
the remaining issues #2, #3, and #4, as we believe these issues
are either outside the purview of this committee and/or not
germane to the issues before this committee panel.
RECOMMENDATION
Therefore, based upon the forgoing, a majority of the
Panel recommends that Petitioner be reinstated to the practice of
law.
DATED this 31st day of October, 2006, at Anchorage,
Alaska.
ALASKA BAR ASSOCIATION
__________________________________
Martha Beckwith, Chair
Attorney Member
Area Hearing Committee
__________________________________
Carol Stolpe
Public Member
Area Hearing Committee
BEFORE THE ALASKA BAR ASSOCIATION
AREA HEARING COMMITTEE
THIRD JUDICIAL DISTRICT
In The Reinstatement Matter )
Involving )
)
JON E. WIEDERHOLT, )
)
Petitioner. )
)
ABA Membership No. 8312172
ABA File No. 2006R001
DISSENT
Because I still harbor doubts about the Petitioners
reinstatement, I respectfully dissent from the views of my
colleagues on the committee.
The Pier factors1 frame my analysis of Petitioners case
and his application for reinstatement. While my views are not
easily compartmentalized within the various
Pier factors, I believe several are at issue:
1. Petitioners acceptance of wrongdoing with
sincerity and honesty;
2. The nature and seriousness of the original
misconduct; and
3. Proof that Petitioners return to the practice of
law will not be detrimental to the integrity and standing of the
bar or the administration of justice, or subversive of the public
interest.
In reviewing Petitioners case, Im also guided by the
axiom that, while courts should be slow to disbar, they should be
even slower to reinstate.2 Further, any significant doubt about
whether an applicant for reinstatement has sustained their burden
must be resolved in favor of protecting the public interest by
denying reinstatement.3
DISCUSSION
After almost 28 years of practice in this jurisdiction,
primarily in the field of litigation, I do not consider my
approach to the practice of law to be genteel. Nonetheless, I am
stunned by the severity of the conduct for which Petitioner was
disbarred, which admittedly took place 1519 years ago. The
details of that misconduct are amply set forth in the record,4
and I will not recount them here. The supreme court summarized
it as follows:
As this courts 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.
All of these, taken together, demonstrate a
pattern of serious misconduct . . . .5
Mr. Wiederholt was not a novice at the time these
events occurred; he received his license to practice in 1983. He
worked at the firm of a former supreme court justice for three
years before going off on his own, which is when the events in
question occurred.
There is some suggestion that perhaps Mr. Wiederholt
had an anger management problem. However, that does not explain
all of his conduct. He was abusive towards opposing counsel; he
was abusive towards his own clients; and he was abusive to the
process. While anger undoubtedly caused him to strike out in
certain respects, other aspects of his conduct were obviously
deliberate and premeditated.
Despite what I would characterize as overwhelming proof
of his misconduct and ample grounds for his disbarment, Mr.
Wiederholt pursued the matter to the Alaska Supreme Court. The
Court made short shrift of his arguments and the disciplinary
action was affirmed in Wiederholt I.
After all this, one would have hoped that Mr.
Wiederholt would have been chastened by his experience, and
reflect upon his behavior. Five long years passed before Mr.
Wiederholt was eligible to apply for reinstatement. People can
grow and mature over time and I would have thought, indeed
expected, that Mr. Wiederholt would have exhibited some level of
contrition for what he had done and turn over a new leaf.
However, that was not the case. As the supreme court observed:
The transcript of Wiederholts 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 clients 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 a conclusion that
the bar rightfully or wrongfully reached. He
further stated that he deeply regret[s] the
findings that the court came to and not that
he regretted his actions and re-emphasized
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 . .
. was stupid, unethical, and wrong. However,
he then went on to minimize and justify his
actions by stating that [opposing counsel]
was bigger and heavier than he was and that
[opposing counsel] had started the incident.
He also insinuated that [opposing counsel]
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.6
Petitioner applied for reinstatement again,
approximately 15 months after the decision in Wiederholt II.
Although several apologies were then issued in writing, and some
were conveyed orally according to the Petitioners testimony,
there is nothing in the record by any of the victims or
participants that acknowledges these apologies, or
offer support for Petitioners reinstatement.
Following his second reinstatement hearing the
Disciplinary Board rejected the unanimous findings of the Area
Hearing Committee and recommended denial of his reinstatement. A
divided supreme court affirmed.7
Petitioner then filed yet a third petition, which was
apparently withdrawn
because two years had not elapsed since his prior application.
Which brings us to the current petition. I listened
very carefully to Mr. Wiederholts testimony, and that of his
witnesses. From reviewing the transcripts of prior hearings, the
presentation was not substantially different; several of the
witnesses testified at previous hearings, and they continue to
support Mr. Wiederholts application. The only added dimension is
his recent career as an emergency medical technician (EMT);
several witnesses testified about that aspect of Petitioners
development.
Dr. Wolf testified on Petitioners behalf, again.
Personally, I afforded little
weight to his testimony. Through no fault of his own it appears
that Dr. Wolf did not
have an opportunity to retrieve Mr. Wiederholts file from his
prior clinic, and therefore he was frankly not refreshed about
the details of his case and his prior treatment with Mr.
Wiederholt. Moreover, Dr. Wolf also testified at the 1999
hearing in support of Mr. Wiederholt, and his professional
conclusions were substantially at odds with the findings of the
supreme court in terms of Mr. Wiederholts level of remorse.
It appears to me that the wounds suffered by Mr.
Wiederholt are not completely healed. Not only is he deeply
invested in his reinstatement, he has been deeply involved in the
reinstatement efforts on his own behalf. For instance, he stated
that he pretty much wrote . . . all of the pleadings involved in
his last hearing in 2002 and strongly implied that he prepared
all the pleadings associated with this 2006 proceeding. That is
certainly is his prerogative. However, the point is that those
pleadings still reflect an edge and a bitterness that was
somewhat belied by his testimony.
In contrast to the hard edge of the pleadings
associated with his current reinstatement effort, petitioner
professes now to have a serene attitude about the role of an
advocate in our legal system:
Q. Well, isnt it true that in any given
legal situation, at least 50 percent of the
people in the room are hoping that you fail
as a lawyer for your client?
A. Well, if if you draw bright-line
distinctions between did I get a just result
or did I win for my client. I think that was
part and parcel the mistake that I made when
I practiced, is that I took that black-and-
white view that you are suggesting that there
is. And . . . I dont see it that way. I
dont see it as being I win and you lose. In
this proceeding, I dont see that you win if I
dont get readmitted. I dont see that I win
if I do. I mean, if if we do what were
supposed to do as lawyers, it isnt supposed
to be a win or lose. Its supposed to were
supposed to get the right result. Were not
going to have people that are happy with it,
but we wouldnt have people happy with it if
we were referees at a soccer game.
(Trans.: Page 197)
This testimony troubles me. I dont believe clients are
simply looking to let the chips fall where they may. They expect
to prevail. Civil Rule 82 requires a finding as to the
prevailing party. Before a party can prevail, many obstacles
must be overcome, not the least of which is the ingenuity and
skill of opposing counsel, all of which is difficult to predict.
The point is that the client has the right to expect zealous
advocacy on their behalf, not someone acting as a referee. I
think they have the right to expect that their attorney will do
what is necessary, within the confines of the ethical rules.
I have doubts about Mr. Wiederholts ability to provide
vigorous representation given his present attitude about his role
as an advocate. I can certainly understand why he projects a
detachment from the rough and tumble aspects of litigation. That
was the context in which most of his prior transgressions
occurred, giving rise to the offenses for which he was disbarred.
However, in my view, that detachment, if sincere, is potentially
detrimental to the integrity and standing of the bar or the
administration of justice . . . .
Im also troubled by the comparison to Mr. Wiederholts
role and duties as an EMT:
Q. But isnt it true that the stress dealing
with the life and death situations that
youve dealt with are different from the
stress that one would face in the
practice of law?
A. I would certainly hope that its
different.
Q. Okay. Different in the respect that you
really dont have an opposing counsel
firing off angry letters to you, angry
emails, I guess, to update the
technology, or filing pleadings directly
attacking you. I mean, its in the
situations that you work at or work on
as an emergency medical technician, you
dont have an opponent, do you?
A. Yes, sir, I do.
Q. Whats your opponent?
A. Yesterday, a man died on me and a six-
month-old baby girl that I did . . . 45
minutes worth of CPR on my very first
opportunity ever to get in an ambulance
for 45 minutes. Yes, Mr. Van Goor, I
had an opposition.
Q. But nobody . . .
A. I mean, I didnt have a person standing
up there and telling me that Im an evil
bad person, no. But if . . . youre
asking me to draw distinctions between
the morality I represent as a medic or
the morality that I represent as an
attorney, I dont see a big, significant
difference.
Q. Okay. Well . . .
A. I dont know that I can . . . draw
distinctions between the stress of a
legal practice or the stress of . . .
doing what I do as a medic.
First of all, I want to acknowledge that by all
accounts Mr. Wiederholt performs exemplary service as an EMT, and
he is to be commended for the sacrifices he makes and the
services he renders to the community.
However, I respectfully disagree that the stresses he
encounters are comparable to those in the law. Nothing compares
to the preservation of life and efforts to preserve life
performed under extraordinary and harrowing situations.
On the other hand, the stresses encountered in a law
practice are often, quite frankly, trivial. Quibbling between
opposing counsel over unimportant issues, fighting over matters
that are, in the grand scheme of things, not germane these are
stressful and aggravating precisely because they are so trivial,
but these common and every day disputes caused the petitioner
trouble in the past.
Has petitioner matured and grown to the point where the
mundane stresses of a law practice would not affect his judgment
or temperament? I frankly dont know. Would his experience as an
EMT tend to make him more patient and understanding about the
often-insignificant disputes that can arise between counsel?
Again, I dont know, but I have my doubts. His EMT experience
stands on its own and, as I noted, it is a very worthy and
meritorious endeavor on his part. However, the practice of law
is different and his EMT experience, while ennobling, does not
lend weight to his petition for reinstatement.
In conclusion, this has been a difficult case for me,
and I have thought long and hard about my responsibilities as a
committee member. The practice of law is a privilege, not a
right. It is easy for me to be unforgiving of Mr. Wiederholt
based upon the egregious conduct he exhibited, albeit some 1519
years ago. There was no excuse or explanation for that conduct
then except what I can only characterize as a character flaw.
His relentless efforts to be reinstated have also been flawed to
some extent, and I am simply not convinced that he has truly
learned the lessons from his past. I give him credit for going
on with a life in which he has demonstrated many other admirable
qualities and is making a genuine contribution to society.
However, with respect to returning to him the privilege of
practicing law in an unsupervised setting, I continue to harbor
doubts that prevent me from approving his application for
reinstatement, and therefore I dissent.8
__________________________________
Michael C. Geraghty
Attorney Member
Area Hearing Committee
_______________________________
1 In re Wiederholt, 877 P.2d 765 (Alaska 1994).
2 In re Reinstatement of Wiederholt, 24 P.3d 1219 (Alaska
2001); In re Reinstatement of Wiederholt, 89 P.3d 771 (Alaska
2004). Wiederholts 2005 petition for reinstatement was rejected
without opinion as untimely under Alaska Bar Rule 29(b) which
requires the expiration of at least two years from the effective
date of any order of the court denying reinstatement before a new
petition may be filed.
3 One member of the three-member panel dissented.
4 Three members of the nine-member Disciplinary Board
dissented.
5 In re Reinstatement of Wiederholt, 24 P.3d at 1222; In
re Wiederholt, 877 P.2d at 767.
6 In re Reinstatement of Wiederholt, 24 P.3d at 1222.
7 Id.
8 Id. at 1223-24.
9 Alaska Bar R. 29(c)(1).
10 In addition to his full-time job, Wiederholt works
three evening shifts per week (6:00 p.m. to 6:00 a.m.) as an
emergency medical technician in the Matanuska-Susitna Borough.
11 The Findings, Conclusions and Recommendation of the
Disciplinary Board and the opinion of the dissenting members of
the Disciplinary Board are attached as Appendix A. We have
edited Appendix A to conform to this courts style and formatting
requirements and have omitted internal citations.
1 In re Reinstatement of Wiederholt (Wiederholt II), 24
P.3d 1219, 1224-25 (Alaska 2001) (discussing reinstatement
standards listed in In re Pier, 561 N.W.2d 297, 301 (S.D. 1997)).
2 This is the second decision of a divided disciplinary
board that does not follow a recommendation of the area hearing
committee to reinstate Wiederholt. In re Reinstatement of
Wiederholt (Wiederholt III), 89 P.3d 771, 793-94 (Alaska 2004)
(three-member area hearing committee unanimously recommended
reinstatement; seven members of eight-member disciplinary board
recommended against reinstatement). Today is also the second
time our court has been divided on the issue of Wiederholts
reinstatement. Id. (two-one decision).
3 In re Reinstatement of Wiederholt (Wiederholt II), 24
P.3d 1219, 1222-23 (Alaska 2001) (discussing reinstatement
guidelines).
4 Id. at 1222. We stated:
With regard to the review of the
Disciplinary Boards 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. . . .
Id. at 1222-23 (emphasis added, footnote omitted) (quoting from
In re Triem, 929 P.2d 634, 640 (Alaska 1996)).
5 Id. at 1223; cf. Wiederholt III, 89 P.3d at 795
(Carpeneti, J., dissenting).
6 Wiederholt III, 89 P.3d at 795 (Carpeneti, J.,
dissenting):
Because this court reviews the boards
recommendations de novo, and because the
board saw and heard none of the witnesses
except Wiederholt, I am not inclined to give
to the boards factual findings the great
weight we customarily give to them, to the
extent that they are based on an assessment
of witness credibility.
Id.
7 I am attaching as Appendix B the entire area hearing
committee document, with the dissent, to give readers a more
complete picture of the evidence considered by that committee and
available to the disciplinary board and this court. Appendix B
has been edited to conform to this courts style and formatting
requirements.
8 Wiederholt II, 24 P.3d at 1224-25.
9 In re Wiederholt (Wiederholt I), 877 P.2d 765, 766-68
(Alaska 1994) (discussing facts of forgery of clients signature
as endorsement to check).
10 One member of the disciplinary boards majority
described Wiederholts testimony as honest, frank, and accepting:
Have you talked to your children about [the forgery and
subsequent disbarment] in the same tone and frankness and
acceptance and honesty that youre currently talking to us about
it?
11 The disciplinary board also implicitly seemed to fault
Wiederholt for failing to realize that what he thinks he should
have done (sequestered the money and taken it to fee arbitration)
was not an available remedy, i.e., that he still does not realize
how he should have dealt with the dispute. Assuming ignorance of
an appropriate remedy is an ethical lapse, it could not justify
denial of reinstatement.
12 Bar disciplinary counsel testified before the
disciplinary board that his position on Wiederholts reinstatement
is neutral:
Ive been with this case from day-one. Okay?
I formed an opinion, as bar counsel. That
opinion has been expressed in the charges
that were brought; in the positions that the
bar has taken, and so forth. I dont think,
in anything other than perhaps an
inconsequential procedural motion or other
matter in front of this board, or in front of
the Supreme Court, that Ive ever said Im
neutral, or Im not taking a position. . . .
This is the first one of the if not the
first time Ive said, I cant take a position.
13 Alaska Bar R. 29(c) (discussing reinstatement);
Wiederholt II, 24 P.3d 1219 (Alaska 2001).
1 See Alaska Bar R. 29(c)(2); Alaska Bar R. 10(c)(5).
2 See In re Reinstatement of Wiederholt, 24 P.3d 1219,
1224 (Alaska 2001) (Wiederholt II).
3 See id. at 1225 (quoting Bar Rule 29(c)(1)).
4 561 N.W.2d 297 (S.D. 1997).
5 See Wiederholt II, 24 P.3d at 1223-24 & n.14.
6 See In re Reinstatement of Wiederholt, 89 P.3d 771, 773
(Alaska 2004) (Wiederholt III) (text of Disciplinary Board
decision adopted by the Court).
7 See In re Wiederholt, 877 P.2d 765, 768 (Alaska 1994)
(Wiederholt I).
8 The Board notes that Mr. Wiederholt also stated that he
should have sequestered the money and taken the client to fee
arbitration. In fact, there is no such procedure. Fee
arbitration can only be initiated by the client. See Alaska Bar
R. 40.
9 See Wiederholt I, 877 P.2d at 773 (Findings of the
Disciplinary Board).
10 See id. at 772.
11 See 24 P.2d at 1229-30.
12 Wiederholt III, 89 P. 3d at 778 (Conclusions of Law of
Disciplinary Board) (quoting In re Costigan, 664 A.2d 518, 523
(Pa. 1995)).
13 Wiederholt III, 89 P.3d at 778 (Conclusions of Law of
Disciplinary Board) (citations omitted).
1 In re Pier, 561 N.W.2d 297 (S.D. 1997). See also In re
Wiederholt (Wiederholt II), 24 P.3d 1219, 1225 (Alaska 2001).
2 In 2004, the last full year for which statistics are
available from the American Bar Association online, there were
approximately 1,320,000 lawyers with an active license within the
U.S. (2,753 in Alaska). There were 529 lawyers publicly
sanctioned and disbarred that year; another 411 attorneys were
publicly sanctioned and disbarred by consent. In 2004, there were
580 petitions for reinstatement and/or readmission filed in the
U.S.; only 50 petitions were granted for lawyers who had
previously been disbarred.
3 Wiederholt II at page 1223.
4 See In Re Wiederholt (Wiederholt I), 877 P.2d 765
(Alaska 1994) (in particular the findings of the Disciplinary
Board attached at Appendices A and B).
5 Wiederholt II at page 1229 (footnote omitted).
6 Wiederholt II at page 1229-30.
7 In re Wiederholt (Wiederholt III), 82 P.3d 771 (Alaska
2004).
8 Because I do not believe that Mr. Wiederholts
psychiatric stability is an issue, I join the Committee Panels
granting of summary judgment on this issue. For the reasons
expressed, I continue to have doubts about the extent of his
sincerity, and his temperament and judgment to be an attorney.
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