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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 (2/22/2013) sp-6753
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Reinstatement Matter Involving )
) Supreme Court No. S-14690
JON E. WIEDERHOLT, ) ABA File No. 2012R002
)
Petitioner. ) O P I N I O N
)
) No. 6753 – February 22, 2013
)
Appearances: Terry Aglietti, Aglietti Offret & Woofer,
Anchorage, for Petitioner. Mark Woelber, Stephen J.
Van Goor, Anchorage, Bar Counsel for The Alaska Bar
Association.
Before: Fabe, Chief Justice, Stowers, Justice, and Eastaugh,
*
Senior Justice. [Carpeneti, Winfree, and Maassen, Justices,
not participating.]
STOWERS, Justice.
I.
Disbarred attorney Jon E. Wiederholt petitions for reinstatement to the
practice of law in Alaska. Wiederholt was disbarred from the practice of law by Order
of the Alaska Supreme Court of July 8, 1994. The factual basis and circumstances
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
leading to the disbarment are set forth in detail in In the Disciplinary Matter Involving
Wiederholt, 877 P.2d 765 (Alaska 1994) ( Wiederholt I).1
Wiederholt has petitioned for reinstatement on four previous occasions.2
Three of his petitions were denied because either the Alaska Bar Association Area
Hearing Committees considering his petitions or the Alaska Bar Association Board of
Governors sitting as the Disciplinary Board reviewing his petitions recommended to the
supreme court that he not be reinstated, and we agreed with those recommendations.3
1 To summarize, the court disbarred Wiederholt “because, in one case, he
filed a pleading and affidavit stating that his client’s judgment had not been satisfied
when he knew that the judgment had been satisfied, and, in another case, he forged his
client’s signature as an endorsement to a check.” Wiederholt I, 877 P.2d at 766.
Although these were the primary grounds relied upon by the court in disbarring
Wiederholt, the Alaska Bar Association Area Hearing Committee and the Disciplinary
Board found that Wiederholt had committed eight bar offenses: (1) making improper
sexual advances to a client; (2) making unauthorized signature on a check and threats to
disclose client confidences; (3) uttering profane, abusive, and threatening language to
opposing counsel; (4) kicking opposing counsel; (5) using improper delay of discovery
and disruptive tactics in defense of a case; (6) making direct contact by letter to an
opposing party after receiving notice that the party was represented; (7) writing a
threatening letter to an unrepresented claimant on behalf of a client; and (8) filing an
improper claim on behalf of a client to funds deposited in court and failure to disclose
previous execution on a judgment by a client. Id.
2 In the Reinstatement Matter Involving Jon E. Wiederholt , 182 P.3d 1047,
1047-48 (Alaska 2008) (Wiederholt IV).
3 Id. ; In the Matter of the Reinstatement of Wiederholt , 24 P.3d 1219 (Alaska
2001) ( Wiederholt II); In the Matter of the Reinstatement of Wiederholt , 89 P.3d 771
(Alaska 2004) ( Wiederholt III); In the Reinstatement Matter Involving Jon E. Wiederholt ,
182 P.3d 1047 (Alaska 2008) (Wiederholt IV). Under Alaska Bar Rule 29, an Area
Hearing Committee will hold a preliminary hearing on all petitions for reinstatement.
See Alaska Bar R. 29(c)(1). After the Hearing Committee provides a recommendation,
the Alaska Bar Association’s Disciplinary Board will review the Hearing Committee’s
(continued...)
-2- 6753
----------------------- Page 3-----------------------
4
(His third petition was dismissed on procedural grounds. )
Following his most recent petition, the Disciplinary Board adopted on
October 26, 2012 the findings, conclusion, and recommendation of the Area Hearing
Committee that Wiederholt be reinstated to the practice of law.5 The Committee’s
recommendation was unanimous, and contained no proposed conditions on
reinstatement.6 The Board agreed to reinstate Wiederholt, but a majority of the Board
added a recommendation that the supreme court impose two conditions on Wiederholt’s
reinstatement:
[F]or three years following reinstatement, there be some
oversight in which . . . Wiederholt has a professional mentor
who is required to report to the Bar Association any areas of
concern, and . . .
Wiederholt disclose to future clients the fact of his prior
disbarment and the basis for his disbarment.[7]
3 (...continued)
findings and will make a recommendation to this court. See Alaska Bar R. 29(c)(2).
4 Between Wiederholt III and IV , on June 5, 2005, Wiederholt filed his third
petition for reinstatement which was summarily dismissed as untimely.
5 Findings, Conclusions, and Recommendation of Disciplinary Board, ABA
No. 2012R002 (Alaska Bar Association Disciplinary Board, Oct. 26, 2012) (hereinafter
Board Recommendation , attached as Appendix I).
6 Findings of Fact, Conclusions of Law and Recommendations of Area
Hearing Committee , ABA No. 2012R002 (Alaska Bar Association Hearing Committee,
3d Judicial District, Oct. 3, 2012) (hereinafter Committee Recommendation, attached as
Appendix II).
7 The written Board Recommendation is unclear whether the three-year term
would apply only to the mentoring condition or to both conditions. But the transcript
indicates that the Board suggested a condition of “disclosure to future clients of his prior
(continued...)
-3- 6753
----------------------- Page 4-----------------------
Wiederholt filed a Motion for Clarification, objecting to the conditions
requested by the Board’s majority. Wiederholt accepts that a reasonable period of
mentoring may be required, but objects to the three-year term: He proposes a one-year
term. He argues that more than a one-year period of mentoring crosses the threshold
from being rehabilitative to being punitive. Wiederholt also objects to the condition of
disclosure of his disbarment to future clients. He argues that requiring disclosure of his
disbarment goes beyond any concern for protecting the public to being punitive. He also
argues that the Board’s requested conditions are inconsistent with the Committee’s
unanimous recommendation, the conditions were not ordered by this court when he was
initially disbarred, and they weren’t previously requested by the Bar.
The Board filed a Response arguing that it is ultimately a matter of this
court’s discretion what terms and conditions, if any, should be imposed in conjunction
with the reinstatement of an attorney and that all the Board did was make two
suggestions for the court’s consideration.
We have independently examined the record and in the exercise of our
independent judgment we agree with the Area Hearing Committee and the Disciplinary
Board that Wiederholt has satisfied the high and rigorous standards necessary to be
reinstated, and we grant his petition. We agree with the Board’s recommendation that
a three-year period of mentoring be required. We disagree that its proposed requirement
of disclosure is appropriate.
II.
Wiederholt’s first petition for reinstatement was the first time that a
disbarred attorney had ever petitioned this court for reinstatement, and we set forth a
7 (...continued)
disbarment, and it[]s basis for the next three years.”
-4- 6753
----------------------- Page 5-----------------------
comprehensive explanation of the standards to be applied in reinstatement proceedings:
With regard to the review of the Disciplinary Board’s
findings of fact, we view reinstatement as part of attorney
discipline. We therefore employ the same standard used in
reviewing attorney discipline proceedings:
Though this court has the authority, if not the
obligation, to independently review the entire
record in disciplinary proceedings, findings of
fact made by the Board are nonetheless entitled
to great weight. The deference owed to such
findings derives from the responsibility to
conduct disciplinary proceedings which this
court has delegated to the Bar Association.
Where findings of fact entered by the Board are
challenged on appeal to this court, . . . the
respondent attorney bears the burden of proof
in demonstrating that such findings are
erroneous. . . . As a general rule . . . we
ordinarily will not disturb findings of fact made
upon conflicting evidence. . . .[8]
We further explained that “[a]ccording to the American Bar Association
(ABA), because the purpose of lawyer discipline is not punishment, disbarred attorneys
may be readmitted to practice. Nevertheless, the ABA believes that the presumption
should be against readmission.”9 We agreed with this presumption because “[t]he
purpose behind the presumption is protection of the public. This reflects the purpose of
the disciplinary process: to protect the public, not to punish the lawyer.”10 We also
looked to ABA standards for reinstatement, noting that “the ABA recommends that a
8 Wiederholt II, 24 P.3d at 1222-23 (quoting In re Triem , 929 P.2d 634, 640
(Alaska 1996)).
9 Id. at 1223 (citing ABA Standard 2.10).
10 Id. (citation omitted).
-5- 6753
----------------------- Page 6-----------------------
lawyer seeking readmission ‘show by clear and convincing evidence’ the following:
‘rehabilitation, compliance with all applicable discipline or disability orders or rules, and
fitness to practice law.’ ”11 Observing that “most jurisdictions impose very high
standards on those petitioning for reinstatement,” we explained:
The major consideration in reinstatement proceedings is
whether the disbarred attorney has shown that those
weaknesses that produced the earlier misconduct have been
corrected. Therefore, courts often consider remorse,
rehabilitation, and moral fitness to practice law to be key
elements in the inquiry. Because a petitioner for
reinstatement must demonstrate moral fitness and good
character sufficient to be trusted again, the petitioner must
make a showing of these characteristics that “overcome[s] the
court’s former adverse judgment” on the petitioner’s
character.[12]
We determined that “clear and convincing evidence” is the proper standard for Bar
Rule 29 criteria for reinstatement,13 and that Rule 29 requires the petitioner seeking
11 Id. at 1224 (quoting ABA Standard 2.10).
12 Id. (citations omitted).
13 Bar Rule 29(c) reads, in part:
Proceedings for attorneys who have been disbarred or suspended for
more than two years will be conducted as follows:
(1) upon receipt of the petition for reinstatement, the Director will
refer the petition to a Hearing Committee in the jurisdiction in which the
Petitioner maintained an office at the time of his or her misconduct; the
Hearing Committee will promptly schedule a hearing; at the hearing, the
Petitioner will have 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
(continued...)
-6- 6753
----------------------- Page 7-----------------------
reinstatement to prove two things: (1) that he has the moral qualifications, competency,
and knowledge of the law requisite to the practice of law; and (2) that his reinstatement
will not be detrimental to the Bar, the administration of justice, or the public interest.14
We also adopted the following ten factors articulated by the South Dakota Supreme
Court in In re Pier (the “Pier factors”) as “provid[ing] useful guidance in a reinstatement
inquiry”:
(1) the petitioner’s present moral fitness; (2) the petitioner’s
acceptance of wrongdoing with sincerity and honesty; (3) the
extent of the petitioner’s rehabilitation; (4) the nature and
seriousness of the original misconduct; (5) the petitioner’s
conduct following discipline; (6) the time elapsed since the
original discipline; (7) the petitioner’s character, maturity,
and experience at the time of discipline and at present; (8) the
petitioner’s current competency and qualifications to practice
law; (9) restitution; and (10) the proof that the petitioner’s
return to the practice of law will not be detrimental to the
integrity and standing of the bar or the administration of
justice, or subversive of the public interest. [15]
III
.
The Area Hearing Committee in the present matter heard the testimony of
11 witnesses, including Wiederholt, and considered other evidence in the stipulated
13 (...continued)
detrimental to the integrity and standing of the Bar, or to the administration
of justice, or subversive of the public interest. . . . (Emphasis added.)
14 Wiederholt II, 24 P.3d at 1225.
15 Id. (citing In re Pier , 561 N.W.2d 297, 300 (S.D. 1997) (listing a large
number of cases from other jurisdictions and summarizing the requirements they have
set out for reinstatement)).
-7- 6753
----------------------- Page 8-----------------------
record, including the opinion of psychiatrist Dr. Aron Wolf.16 The Committee found by
clear and convincing evidence that: Wiederholt has accepted responsibility for his prior
wrongdoings;17 Wiederholt has become rehabilitated from his pre-disbarment conduct;18
his post-disbarment conduct has been consistent with what is expected of an Alaska Bar
Association member in good standing;19 Wiederholt’s character, maturity, and experience
have changed dramatically for the better since his disbarment;20 his competency and
qualifications to practice law are consistent with readmission;21 there are no restitution
issues and Wiederholt has apologized to each of his victims;22 his return to the practice
of law will not be detrimental to the integrity and standing of the Bar or the
administration of justice;23 his remorse is genuine;24 and he is not likely to reoffend.25
The Committee was also influenced by the fact that Bar Counsel could identify no reason
why Wiederholt should not be readmitted.26 The Committee considered the entire
16 Committee Recommendation at 5-7, ¶ 4.
17 Id. at 8, ¶ 5.
18 Id. at 8, ¶ 6.
19 Id. at 9, ¶ 8.
20 Id. at 10, ¶ 9.
21 Id. at 10, ¶ 10.
22 Id. at 10-11, ¶ 11.
23 Id. at 11, ¶ 12.
24 Id. at 11, ¶ 13.
25 Id.
26 Id. at 12, ¶ 15.
-8- 6753
----------------------- Page 9-----------------------
record, applied the Pier factors, found Wiederholt credible, and found his present moral
fitness “exemplary.”27 Accordingly, the Committee concluded that he met his burden of
proving by clear and convincing evidence that he has the moral qualifications,
competency, and knowledge of the law required for the readmission to the practice of
law.28 The Committee unanimously recommended that Wiederholt be reinstated. Bar
Counsel did not oppose reinstatement nor did Bar Counsel recommend that any
conditions be placed upon his reinstatement,29 and the Committee made no
recommendation for conditions.
As stated above, the Disciplinary Board unanimously adopted the
Committee’s findings of fact and conclusion of law, and recommended that this court
reinstate Wiederholt. But a majority of the Board also recommended that we place two
conditions on Wiederholt’s reinstatement: three years of mentoring and a requirement
that he disclose the fact and basis of his disbarment to any prospective clients for the
same period of time. Wiederholt challenges the length of the mentoring condition and
the disclosure condition.
IV.
We will independently exercise our judgment concerning a reinstatement
petition in at least two respects: we independently review the entire record while giving
27 Id. at 12-14.
28 Id.
29
Courtsmart, 1/9/13 OA: 9:18:25-9:20:50 (statement of Bar Counsel Mark
Woelber at oral argument).
-9- 6753
----------------------- Page 10-----------------------
the Board’s findings of fact great weight, and we independently exercise our judgment
concerning the Board’s recommendation.30
Although there is no Alaska authority that directly addresses the questions
before us, we begin with the principle that this court possesses inherent authority to place
reasonable, relevant conditions upon a disbarred lawyer who seeks reinstatement to the
practice of law, regardless of whether the Committee or the Board recommends
conditions on reinstatement. Wiederholt does not cite any case from any jurisdiction that
would limit the authority of a high court from doing so. Bar Rule 29, pertaining to
reinstatement, does not address the issue.
The Board cites to In the Reinstatement Matter Involving Cavanaugh31 and
In the Disability Matter Involving Gould32 as potentially relevant authorities.
Cavanaugh stated that probation following reinstatement from suspension
cannot be imposed when no probation was originally ordered since that would amount
to the imposition of additional discipline not contained in the original order.33 In Gould
we reinstated a lawyer from disability inactive status subject to conditions recommended
by the Board.34 The present petition is substantively different from a case where the
court imposes probation under Bar Rules 16(a)(3) or 28(e) or reinstates a previously
disabled inactive attorney, and neither case controls the issue before us now. For
example, it would not be surprising that, in its order suspending an attorney, this court
30 In the Reinstatement Matter Involving Wiederholt , 182 P.3d 1047, 1048
(Alaska 2008) ( Wiederholt IV).
31 Alaska Supreme Court Order No. 08333 (Aug. 6, 1998).
32 Alaska Supreme Court Order No. 14011 (Feb. 16, 2012).
33 Alaska Supreme Court Order No. 08333 (Aug. 6, 1998).
34 Alaska Supreme Court Order No. 14011 (Feb. 16, 2012).
-10- 6753
----------------------- Page 11-----------------------
might impose conditions upon reinstatement following suspension from the practice of
law because it is contemplated that the lawyer is going to return to the practice of law
once the suspension is complete. Though disbarment is not considered to be a permanent
condition, there is a presumption against reinstatement after disbarment,35 and therefore
it would be unusual for this court to impose conditions on reinstatement in its disbarment
order because reinstatement is not contemplated.
Other jurisdictions commonly reinstate disbarred attorneys with conditions.
In In the Matter of the Disciplinary Proceeding Against Rosellini , the Washington
Supreme Court reinstated an attorney disbarred for misuse of client trust account funds
conditioned upon three-year supervised probation.36 After describing a number of cases
from both Washington and other jurisdictions where conditions had been imposed after
periods of disciplinary suspension or disbarment, the court explained:
The American Bar Association has also endorsed the use of
probation as an appropriate method of attorney discipline.
Probation allows a lawyer to practice law under specified
conditions and may be imposed alone, in conjunction with
35 In the Matter of the Reinstatement of Wiederholt , 24 P.3d 1219, 1223
(Alaska 2001) ( Wiederholt II).
36 739 P.2d 658, 663-65 (Wash. 1987) (listing Washington and other cases).
Other examples of decisions that have conditioned the reinstatement of attorneys on their
compliance with certain requirements include In re Ellis , 930 N.E.2d 724, 728-29 (Mass.
2010) (reinstating petitioner provided that he, inter alia, not engage in any personal
injury or workers’ compensation cases or represent any family members for a period of
five years, and that he purchase malpractice insurance); In re Reinstatement of Anderley ,
696 N.W.2d 380, 386 (Minn. 2005) (conditioning petitioner’s reinstatement on the
requirement that he not engage in solo practice of law and that he be placed on indefinite
probation); In re Evans, 669 S.E.2d 85, 88-89 (S.C. 2008) (reinstating petitioner who had
been disbarred for felony DUI causing death, provided that he, inter alia, continue to
participate in twelve-step program for at least two years and enter into two-year
monitoring contract with an attorney group).
-11- 6753
----------------------- Page 12-----------------------
other discipline, or after disbarment. ABA Standards for
Imposing Lawyer Sanctions , Standard 2.7 (Approved Draft,
1986).[37]
The Commentary to ABA Standard 2.10 Readmission and Reinstatement
provides that “conditional reinstatement can occur when appropriate. Conditions that
can be imposed include probation (see Standard 2.7) or other sanctions or remedies (see
Standard 2.8).” While Standard 2.7 Probation clearly contemplates supervision or
mentoring, neither Standard 2.7 Probation nor Standard 2.8 Other Sanctions and
Remedies explicitly suggests a condition of disclosure of the prior disbarment, though
the Commentary to Standard 2.7 includes a general, catch-all “other conditions as are
appropriate for the misconduct” standard, and Standard 2.8(g) provides for “other
requirements that the state’s highest court or disciplinary board deems consistent with
the purposes of lawyer sanctions.”
The Board’s recommended mentoring condition is relevant to Wiederholt’s
misconduct and it advances several purposes served by lawyer discipline when a
disbarred attorney seeks reinstatement following disbarment: promoting the petitioner’s
rehabilitation, protecting the public, maintaining the integrity of the court and of the Bar,
and advancing the administration of justice. A reasonable period of mentoring by
another attorney serves to support and monitor the reinstated attorney; to help that
attorney successfully perform his duties consistent with the requirements for the
attorney’s ethical obligations, knowledge of the law, and the administration of justice;
and to discover and report if the attorney fails to meet these obligations. A mentoring
condition also can foster public understanding and acceptance of the reinstatement. In
the words of the Washington Supreme Court:
37 Rosellini , 739 P.2d at 664.
-12- 6753
----------------------- Page 13-----------------------
We believe conditional reinstatement is appropriate in the
present case, providing a gradual and supervised reentry into
the profession. To the extent any doubts remain about
Rosellini in the minds of the bar or the public, they will be
better dispelled by observing and supervising his
performance in practice than by requiring him to sit idly by
while awaiting a later opportunity to reapply for
reinstatement.[38]
We conclude that a three-year period of mentoring is reasonable and
appropriate in this case. A one-year period may be too short to give Wiederholt enough
time to benefit from the mentoring and oversight he will receive. And we do not
perceive that a three-year period is punitive or excessive. We envision the mentoring
process to be one where Wiederholt will propose the names of attorneys, satisfactory to
Bar Counsel, who have agreed to mentor him. These attorneys shall be required to both
mentor and monitor Wiederholt’s work and professional conduct. The mentors shall
report periodically, in intervals to be determined by Bar Counsel, on Wiederholt’s
progress and report any problems or violations that the mentoring attorneys believe may
have occurred.
On the other hand, a requirement to advise potential future clients of the
fact and basis of Wiederholt’s previous disbarment is not reasonable, at least on the facts
of this case. As Bar Counsel explained at oral argument, this condition was not
requested by Bar Counsel39 and we are unaware of any case where such a condition has
been imposed. The Disciplinary Board did not discuss or provide any explanation of the
purpose of this condition in its Recommendation.
38 Id.
39 See supra note 29.
-13- 6753
----------------------- Page 14-----------------------
Mandatory disclosure could be perceived to be a “scarlet letter” of shame
and as such would be inconsistent with the idea that reinstatement following disbarment
indicates the petitioner has been found to be rehabilitated and qualified to practice law.
Imposing a disclosure requirement on Wiederholt would seem to be altogether
inconsistent with his readmission to the practice of law. We have been given no
explanation how disclosure might serve any useful purpose here. Because Wiederholt’s
readmission is founded on our conclusion that he presents no danger of misconduct to
future clients, we decline to impose a disclosure condition. We observe that because all
of our decisions relating to Wiederholt’s disbarment and repeated attempts at
reinstatement have been published, they are readily available to any potential client who
chooses to conduct research prior to retaining Wiederholt.
V.
Having independently reviewed the record and the findings and
recommendations of the Area Hearing Committee and the Disciplinary Board of the
Alaska Bar Association, we agree with the Board’s findings of fact, conclusion of law,
and recommendation for reinstatement, and in the exercise of our independent judgment
we grant Wiederholt’s petition for reinstatement to the practice of law. We impose as
a condition of reinstatement that Wiederholt be mentored by an actively practicing
Alaska attorney (or group of attorneys) for a period of three years, as explained in this
opinion. We do not accept the Board’s recommendation that Wiederholt’s reinstatement
be conditioned on disclosure of his disbarment.
-14- 6753
----------------------- Page 15-----------------------
BEFORE THE ALASKA BAR ASSOCIATION
DISCIPLINARY BOARD
In The Reinstatement Matter )
Involving ) Supreme Court No. S-14690
)
JON E. WIEDERHOLT, )
)
Petitioner. )
)
ABA Membership No. 8312172
ABA File No. 2012R002
FINDINGS, CONCLUSIONS, AND
RECOMMENDATION
OF DISCIPLINARY BOARD
This reinstatement matter came before the Disciplinary Board of the Alaska Bar
Association on October 26, 2012. The Board, having considered the report of the area
hearing committee filed October 3, 2012, hereby
ADOPTS the findings, conclusions and recommendation of the area hearing
committee contained in that report as its findings, conclusions, and recommendation in
this matter. Although there was concern regarding the risk of future harm, for the
majority, that concern did not rise to the level of substantial concern warranting an
objection to Jon Wiederholt’s reinstatement.
Those in the majority, recognizing that it is the Supreme Court’s discretion to
impose conditions, would prefer that, for three years following reinstatement, there be
some oversight in which Mr. Wiederholt has a professional mentor who is required to
Appendix I – 1 of 2 6753
----------------------- Page 16-----------------------
report to the Bar Association any areas of concern, and that Mr. Wiederholt disclose to
future clients the fact of his prior disbarment and the basis for his disbarment.
DATED this 26th day of October, 2012 at Anchorage, Alaska.
/s/ Hanna Sebold
President
Disciplinary Board
Appendix I – 2 of 2 6753
----------------------- Page 17-----------------------
BEFORE THE ALASKA BAR ASSOCIATION
AREA HEARING COMMITTEE
THIRD JUDICIAL DISTRICT
In The Reinstatement Matter )
Involving ) Alaska Bar Association
) Filed and Entered on
JON E. WIEDERHOLT, ) Oct -3 2012
) Pursuant to the Rules of
Petitioner. ) Disciplinary Enforcement
)
ABA Membership No. 8312172
ABA File No. 2012R002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDATIONS OF AREA HEARING COMMITTEE
On September 17, 2012, a hearing was held before the Area Hearing Committee
Panel (the “Panel”) assigned to hear the above-referenced Petition for Reinstatement.
Based upon witness testimony, the record as stipulated by the Petitioner and Bar counsel,
counsel’s briefing and arguments and all other matters in the record, the Panel hereby
makes its Findings of Fact, Conclusions of Law and Recommendations to the
Disciplinary Board:
APPLICABLE LEGAL STANDARD
Alaska Bar Rule 29(c)(1) provides in pertinent part that:
. . . the Petitioner will have 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 this 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; . . .
Appendix II – 1 of 13 6753
----------------------- Page 18-----------------------
In In Re Wiederholt , 24 P.3d 1219 (Alaska 2001), the court recognized the
presumption against the reinstatement of a disbarred attorney, noting a principle purpose
behind the presumption is to protect the public. Supra at 1223. The court identified
factors set out in In Re Pier , 561 N.W.2d 297 (S.D. 1997), as helpful in determining
whether Petitioner has met the necessary standards for reinstatement.
Those factors include:
1. The Petitioner’s present moral fitness;
2. The Petitioner’s acceptance of wrongdoing with sincerity and
honesty;
3. The extent of the Petitioner’s rehabilitation;
4. The nature and seriousness of the original misconduct;
5. The Petitioner’s conduct following the discipline;
6. The time lapsed since the original discipline;
7. The Petitioner’s character, maturity, and experience at the time of
discipline and at present;
8. The Petitioner’s current competency and qualifications to practice
law;
9. Restitution; and
10. Proof the Petitioner’s return to the practice of law will not be
detrimental to the integrity and standing of the Bar or the
administration of justice, or subversive of the public interest.
In Re Reinstatement of Wiederholt , supra at 1225.
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
Appendix II – 2 of 13 6753
----------------------- Page 19-----------------------
basis and circumstances leading to the Court’s action are set forth in the case In Re
Disciplinary Matter Involving Wiederholt , (“Wiederholt I”) 877 P.2d 765 (Alaska 1994).
2. Since his 1994 disbarment, Petitioner has filed five Petitions for
Reinstatement with the Alaska Bar Association. This is Petitioner’s fifth Petition for
Reinstatement. This matter’s procedural history is summarized below for Disciplinary
Board’s reference:
Date Pleadings Action
12/10/92 Area Hearing Panel’s Decision on Bar Upheld Grievances
Association Grievances
2/22/93 Area Hearing Panel’s Findings and Recommended Disbarment
Recommendations on Sanctions
6/10/93 Disciplinary Board’s Recommendations Adopts Hearing Panel’s
Recommendation of Disbarment
7/8/94 Alaska Supreme Court Decision Affirms Disciplinary Board’s
877 P.2d 765 (Alaska 1994) (“Wiederholt I”) Recommendation of Disbarment
6/22/99 1st Petition for Reinstatement
2/3/00 Area Hearing Panel’s Decision on 1st Petition Recommended Denial of
for Reinstatement Reinstatement
3/10/00 Disciplinary Board’s Findings, Conclusions, Adopts Findings and
and Recommendation on 1st Petition for Conclusions of Area Hearing
Reinstatement Committee, and Recommends
Denying Reinstatement
6/15/01 Alaska Supreme Court Decision Affirmed Disciplinary Board’s
24 P.3d 1219 (Alaska 2001)(“Wiederholt II”) Decision Denying Reinstatement
2/27/02 2nd Petition for Reinstatement
11/14/02 Area Hearing Panel’s Findings of Fact, Recommended Reinstatement
Conclusions of Law, and Recommendations of
Area Hearing Committee Panel
Appendix II – 3 of 13 6753
----------------------- Page 20-----------------------
5/12/03 Disciplinary Board’s Recommendation on 2nd Rejects Area Hearing
Petition for Reinstatement Committee’s Recommendation;
Recommends Denying
Reinstatement
6/22/04 Alaska Supreme Court Decision Affirmed Disciplinary Board’s
89 P.3d 771 (Alaska 2004) (“Wiederholt III”) Decision Denying Reinstatement
6/05/05 3rd Petition for Reinstatement
7/15/05 Alaska Supreme Court Rejected or Dismissed 3rd
Petition as untimely under Bar
Rule 29
4/23/06 Motion for Summary Reinstatement filed
with Alaska Supreme Court
6/22/06 Alaska Supreme Court Denied Summary Reinstatement
and Remanded to Bar
Association for further
proceedings
6/30/06 Motion for Reinstatement –
4th Petition for Reinstatement
10/31/06 Area Hearing Panel’s Decision on 4th Petition Majority Recommends
for Reinstatement Reinstatement
4/1/12 5th Petition for Reinstatement
4/1/12 Motion to Determine Law of the Case
Respecting Post-Reinstatement Conditions
Filed with Alaska Supreme Court
4/1/12 Motion for This Court to Exercise Original
Jurisdiction Filed with Alaska Supreme Court
4/1/12 Motion for Summary Reinstatement;
Alternatively Motion for Hearing Limited to
Rehabilitative Time Since September 2006
Filed with Alaska Supreme Court
4/1/12 Motion for Re-Appointment of Hearing
Committee Filed with the Alaska Supreme
Court
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6/1/12 Alaska Supreme Court Order Motions for Summary
Reinstatement, to Determine the
Law of the Case Respecting
Post-Reinstatement Condition,
for this (Supreme) Court to
Exercise Original Jurisdiction
and for Reappointment of the
Hearing Committee Denied
3. More than five years have passed since Petitioner’s disbarment in 1994 and
Petitioner was last denied reinstatement on March 28, 2008. The Panel finds, pursuant
to Alaska Bar Rule 29(b)(5), more than two years have passed since “the effective date
of the court’s most recent order denying reinstatement” and, therefore, Petitioner is
factually and legally eligible to be considered for readmission to the practice of law.
4. Eleven witnesses, including Petitioner, were called by Petitioner to testify
at the hearing. Six of the witnesses were members of the Alaska Bar, Ronald Offret,
Laurel Peterson, Gregory Parvin, Joshua Fink, Steven Priddle and J. Robert Woofter,
who have employed Petitioner as a paralegal covering the years beginning shortly after
his disbarment to the present. One witness, Angela Hammon, was a paralegal who was
acquainted with Petitioner’s work as a paralegal, two witnesses, Mike and Bari Lasky,
were personal friends who have known Petitioner since junior high school, and the last
witness was Petitioner’s wife, Lisa Behrens, who met Petitioner through his work as an
EMT. All of the witnesses testified to Petitioner’s good moral character, freedom from
drug or alcohol problems, and his freedom from anger issues. In the case of the legal
professionals, they testified to his excellent legal knowledge and skills, his ability to
work well with his supervisors and subordinates, his ability to handle stress, his freedom
from arrogance and their opinion his readmission to the Bar will not discredit the legal
profession. Those lawyers currently practicing all testified to the effect that they trusted
Petitioner with their client’s affairs and would hire Petitioner if he was readmitted and
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they had an opening. The Panel finds all of the witnesses credible but some of the
testimony was more or less persuasive based on the witnesses’ level of familiarity with
Petitioner, the circumstances of his disbarment and his subsequent efforts at
rehabilitation. Rather than summarize their individual testimony, the Panel will cite
specific pertinent testimony in connection with its Findings of Fact and consideration of
the Pier factors.
4. The Panel finds Petitioner has met his burden of demonstrating by clear and
convincing evidence that he currently possesses the requisite moral fitness to practice
law in this state based on the following:
(a) The attorney witnesses who testified on behalf of Petitioner testified
uniformly to his legal knowledge and found it consistent with
adherence to the Alaska Rules of Professional Conduct.
(b) Both the lawyer and lay witnesses testified to Petitioner’s adherence
to moral and ethical standards both in Petitioner’s private and
professional life. Although the lay witnesses who knew Petitioner
the longest were apparently unaware of any moral or ethical issues
concerning Petitioner at the time of the acts that led to his
disbarment, their testimony to his character in his personal
relationships and the current absence of the personality traits that
undoubtedly contributed to Petitioner’s disbarment is consistent
with the testimony of the lawyer witnesses and uncontradicted.
(c) Petitioner’s testimony consistently demonstrated his
acknowledgment that the Board and Court decisions which resulted
in his disbarment were correct, his remorse over his conduct and
recognition he was solely responsible for the conduct that led to his
disbarment. He specifically testified he was deserving of discipline
Appendix II – 6 of 13 6753
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and the Bar acted correctly. He expressed remorse over the effect
of his behavior on the community and recognized his reputation was
damaged through his own fault. He acknowledged his conduct gave
credence to attorneys’ poor reputation in general. The Panel
concludes Petitioner has demonstrated through his words and acts
over the lengthy period since his disbarment, that he has the moral
fitness to avoid the conduct, particularly the dishonest conduct,
which resulted in his disbarment.
(d) As noted in the findings of previous Panels, Petitioner has, either
personally or in writing, apologized to each and every victim of his
past misconduct and all but one accepted his apology.
(e) Dr. Aron Wolf did not testify before this Panel. However, the
findings concerning his opinions are included in the stipulated
record and further substantiate a material change in
Mr. Wiederholt’s mental fitness to return to the unsupervised
practice of law.
(f) Although the lay witnesses at the recent hearing testified to
substantial changes in Petitioner’s maturity since the acts which led
to his disbarment, illustrated by his commitment to training and
working as an EMT during the years after his disbarment, their
testimony was less persuasive than the testimony of Mr. Peterson
and Mr. Woofter who both testified to Mr. Wiederholt’s
shortcomings either prior to or shortly after his disbarment and
marked improvement in his attitude and behavior toward and respect
for others, particularly adversaries in legal proceedings.
Appendix II – 7 of 13 6753
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5. Based upon the observations in the preceding paragraphs, the Panel also
finds Petitioner has demonstrated by clear and convincing evidence he has accepted
responsibility for the wrongdoings, which led to his disbarment, with sincerity and
honesty. All of the witnesses testified Petitioner has referred to the events leading to his
disbarment in conversation with the witnesses and the witnesses uniformly testified
Petitioner has made no attempt to minimize his responsibility for the disbarment.
6. The Panel finds the extent of Petitioner’s rehabilitation is consistent with
readmission to the Alaska Bar Association. By all accounts, Petitioner has completely
altered his personality as it relates to his work as a paralegal. He is respectful of his
supervisors and support staff and has tempered his legal writing. According to the
lawyer witnesses, he conducts himself in a manner consistent with conduct expected of
a member of the Bar, which reflects substantial rehabilitation from his conduct prior to
disbarment. In addition, his training and work as an EMT exhibits a desire to help others
while performing an important function in the community, which further evidences his
desire to make reparation for his prior antisocial conduct.
7. The Panel considers Petitioner’s prior misconduct to be in the category of
the most serious misconduct, which certainly warranted disbarment. However, the Bar
Rules allow for the possibility of readmission. Moreover, Petitioner has attempted,
insofar as he is able, to apologize to his former victims, has accepted responsibility for
and undertaken to alter the conduct which led to his disbarment. Petitioner testified he
has tried for 18 years to not be the person the Supreme Court found him to be and there
is no length he would not go to prove to the Supreme Court his character, maturity, and
experience are worthy of readmission to the Bar. His testimony is credible. The Panel
finds these factors entitle him to consideration for readmission notwithstanding the
seriousness of the original conduct.
Appendix II – 8 of 13 6753
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8. Based upon the entire record and the testimony of all witnesses at the
hearing, the Panel finds clear and convincing evidence Petitioner’s conduct since his
disbarment has been consistent with the conduct expected of a member of the Bar
Association. Although Petitioner was slow to accept the wrongful nature of his conduct,
by all accounts his conduct since disbarment has been consistent with the conduct
expected of a member of the Bar.
9. The Panel finds by clear and convincing evidence the elapsed time since
Petitioner’s original disbarment is consistent with readmission to the Bar. The Bar Rules
permit readmission to the Bar and provide that, after the minimum five-year period
prescribed in the Rule, reinstatement becomes possible. Assuming Petitioner has
otherwise demonstrated that he should be readmitted, despite the serious nature of
Petitioner’s misconduct at the time of discipline, the Panel believes an adequate time
period has elapsed since the original discipline. The Panel finds clear and convincing
evidence Petitioner’s character, maturity and experience have changed dramatically
between the time of discipline and the present. This is most dramatically illustrated by
Petitioner’s position taken at the time of the original disciplinary proceedings where he
did not appreciate the clearly inappropriate nature of his conduct and his responsibility
for that conduct. As discussed above, Petitioner’s subsequent acceptance of
responsibility for the conduct and its consequences, and his genuine embarrassment and
remorse over the conduct, demonstrate improvement in character, growth in maturity and
life experience. Based upon witness testimony, Petitioner has had a genuine change in
his personality, character and approach to life and the practice of law from the individual
who committed the acts, which led to his disbarment.
10. The Panel finds by clear and convincing evidence Petitioner’s competency
and qualifications to practice law are consistent with readmission to the Bar Association.
There does not appear to be any significant issue with respect to Petitioner’s abilities to
Appendix II – 9 of 13 6753
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analyze legal problems, legal research or writing. All of the lawyer witnesses testified
to Petitioner’s excellent legal knowledge and abilities. He has kept abreast of
technological advances in the legal profession and stayed current with legal issues.
11. The Panel finds by clear and convincing evidence there are no restitution
issues that present any obstacle to readmission to the Bar Association. Petitioner, either
personally or in writing, apologized to each and every one of his victims, which
demonstrates a sincere attempt to make reparation and there appears to be no necessity
for restitution for his conduct.
12. The Panel finds by clear and convincing evidence Petitioner’s return to the
practice of law will not be detrimental to the integrity and standing of the Bar or the
administration of justice or subversive of the public interest. All of the lawyer witnesses
at hearing and, based upon prior hearings’ records, additional lawyers who testified on
Petitioner’s behalf, stated Petitioner’s readmission to the Bar Association would not, in
their opinions, bring discredit to the Bar. Indeed, witnesses at the current hearing
testified Petitioner’s readmission would be to the Bar’s credit and demonstrate the Bar’s
ability to accept Petitioner’s sincere rehabilitation and reformation.
13. Petitioner’s notoriety due to the disbarment and multiple attempts at
readmission assure Petitioner is extremely unlikely to repeat the conduct which led to his
disbarment since any adversary would likely be on the lookout for any such conduct,
even if the Petitioner were likely to repeat it. The Panel does not believe Petitioner is
likely to reoffend because his remorse is genuine and no one in his position would
willingly risk repeating the humiliation, which resulted from his previous conduct. The
willingness of a numerous and diverse group of lawyers to unequivocally recommend
Petitioner’s readmission to the Bar when they clearly recognize any subsequent offense
by the Petitioner would, at the very least, bring their own judgment into question, is
persuasive evidence Petitioner’s readmission and subsequent return to the practice of law
Appendix II – 10 of 13 6753
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will not harm the integrity and standing of the Bar. In addition, the evidence of the
lawyer witnesses, who confirmed most of their clients, after being advised of Petitioner’s
previous disbarment, still maintained a positive attitude toward Petitioner and his
involvement in their cases, is determinative Petitioner’s readmission will not be
subversive of the public interest.
14. The Panel is also persuaded by Petitioner’s testimony concerning his
isolation as an attorney at the time of the incidents that led to his disbarment. That
isolation likely contributed to the behavior that led to his disbarment. Through his work
with attorneys over the years Petitioner has developed a network of contacts within the
legal community who support his reinstatement and are likely to support his efforts to
reestablish himself in the legal community. His expressed intention to seek employment
where he would work with colleagues shows intent on his part not to repeat the mistakes
that put him in this position and insight concerning changes necessary to assure a
successful return to the practice of law if he is readmitted.
15. A final factor, which influenced the Panel’s conclusion, was Bar counsel’s
response to a question whether he could identify any reason why the Petitioner should
not be readmitted to the practice of law. Bar counsel has represented the Bar Association
from the time of the disbarment proceedings against Petitioner to the present. His
inability to identify or articulate any reason standing in the way of Petitioner’s
readmission, demonstrates to the Panel if the Bar Rule allowing for readmission in
appropriate circumstances is to have any meaning the Petitioner must be readmitted.
16. When applying the Pier factors, and the entire record in this matter,
reinstatement is proper. Petitioner is credible. He has learned from his misconduct and
his present moral fitness is exemplary; he has accepted his wrongdoing with sincerity and
honesty, displays appropriate remorse, and acknowledges his misconduct is entirely his
fault and there are no excuses for his past behavior; over the past 18 years has exhibited
Appendix II – 11 of 13 6753
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professionalism and integrity in his work as a paralegal evidencing he has been
rehabilitated; the nature and seriousness of his original conduct warranted disbarment,
however, his conduct following discipline has been upstanding and justifies
reinstatement; 18 years have passed since disbarment, which is a sufficient disbarment
period considering the original misconduct; Petitioner is no longer the person he was
when he engaged in the conduct which led to his disbarment, he has matured, maintains
high moral standards, is of honorable character, is reserved and mature, and has gained
valuable legal experience serving as a paralegal for the past 18 years; he is competent
and qualified to practice law in the State of Alaska; he has made sincere apologies in
face-to-face meetings or in writing to all whom were victimized by his misconduct; and
finally, Petitioner’s return to the practice of law will not be detrimental to the integrity
and standing of the Bar or the administration of justice, or subversive of the public
interest because Petitioner is committed to not be the person the Supreme Court found
him to be, he no longer feels he has to win every battle along the way to zealously
represent clients, and understands the critical importance of collegiality amongst
members of the Bar, for him practicing law with integrity and in a way that will not be
subversive to the public involves a bright line over which the Panel is persuaded he will
never step again.
CONCLUSIONS OF LAW
Based upon the foregoing, the Panel concludes Petitioner has met his burden of
proving by clear and convincing evidence he has the moral qualifications, competency,
and knowledge of law required for admission to the practice of law in the State of
Alaska, and his resumption of the practice of law in this 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.
Appendix II – 12 of 13 6753
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RECOMMENDATIONS
In light of the Panel’s findings of fact and conclusions of law, the Panel
recommends Petitioner be reinstated to the practice of law.
Dated this 1st day of October 2012.
/s/ Timothy M. Stone, Chairman
Area Hearing Committee
/s/ Janel L. Wright, Member
Area Hearing Committee
/s/ Fran Talbott, Public Member
Area Hearing Committee
Appendix II – 13 of 13 6753
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