IN RE: The REINSTATEMENT OF Kwame Telli MUMINA to membership in The Oklahoma Bar Association and to the Roll of Attorneys. (2009)

¶ 1 On December 3, 1997, we approved the attorney's voluntary resignation from the Bar Association pending disciplinary proceedings arising from his misappropriation of approximately $50,000.00 in fees belonging to his employer law firm. In July of 2000, Mumina was indicted on twenty counts relating to his actions as trustee of a bankruptcy estate. Nineteen of those counts involved the utilization of over $100,000.00 of bankruptcy funds during 1995 and 1996 for his own purposes. A plea agreement resulted in the dismissal of the first nineteen counts; and the attorney pled guilty to the only remaining count, filing a false report in the bankruptcy proceedings. On January 12, 2009, approximately eleven years after having resigned his office of attorney, Mumina filed a petition for reinstatement.

¶ 2 Upon a de novo review,¹ we determine that the attorney presented clear and convincing evidence that, if readmitted, his conduct would conform to the high standards of a member of the Bar Association.² Costs of $2,796.78 are imposed.³ Our decision to allow Mumina to return to the practice of law is supported by: testimony from an elected official, a former federal prosecutor, and two sitting district judges indicating that the attorney's reinstatement would be advantageous to the judicial system, the Bar Association, and his community;⁴ the attorney's unqualified acceptance of responsibility for his admittedly wrongful acts;⁵ the fact of complete monetary restitution to the victims of his misdeeds and his on-going efforts in meeting his tax obligations; his recognition that he must react differently to the situations causing stress in his life; and his attempts to help young lawyers avoid the pitfalls of his experiences in the practice of law.

FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS

¶ 3 Mumina was admitted to the practice of law in 1983. On May 5, 1997, the Bar Association filed a three-count complaint against the attorney. All three charges involved Mumina's having misappropriated, for his own use, funds belonging to his employer firm and his dishonesty in responding to firm inquiries about the monies. Count one related to the attorney having accepted a personal check from a client in the amount of $32,500.00 while representing to the firm that he was having difficulty obtaining the attorney fee funds. The second count involved Mumina's having misappropriated $6,843.00 in fees and $1,304.48 in expenses awarded in his law firm's favor contemporaneous with misrepresenting to the firm that there had been no award. Count three described Mumina's having taken $11,870.52 in funds intended for the firm in the form of fees and communicating to the firm that no fees would be paid until some future date when the cause was finally concluded. Prior to the filing of the complaint, the attorney made full restitution to the firm.⁶

¶ 4 Mumina's resignation, prompted by the Bar Association's complaint, ended an admirable legal career. Prior to that time, the attorney clerked for a federal bankruptcy judge and had been named as a partner in one firm and as a shareholder in another. He was active in the Bar Association on both a state-wide and county level and instrumental in forming the William J. Holloway, Jr. American Inn of Court which he served as President and Secretary-Treasurer. Contemporary therewith, Mumina was also involved in his local community. Nevertheless, the attorney was experiencing turmoil in his private life. His wife was diagnosed with a life-threatening disease which required her to resign her employment. One of Mumina's children was experiencing significant psychological problems related to the lack of attention she was receiving from her father resulting in an attempted suicide. Finally, the attorney did not believe he was getting the staff support he had been promised at his new firm or that all aspects of his compensation package were being paid at the expected levels.⁷

¶ 5 During the same time period, the attorney learned that he was under investigation for his activities while serving as a bankruptcy trustee. On July 5, 2000, a twenty-count indictment issued. The first nineteen counts alleged misappropriation and embezzlement of approximately $115,000.00 belonging to the bankruptcy estate. The final count involved the filing of a false report in the bankruptcy proceedings. The counts relating to misappropriation and embezzlement were dismissed as part of a plea negotiation after Mumina restored almost $105,000.00 to the bankruptcy estate.⁸ The attorney pled guilty to the single remaining count. On March 7, 2001, Mumina was ordered to pay restitution in the total amount of $35,425.73 and to serve a maximum of twenty-one months imprisonment. The attorney was released from prison on November 21, 2002 and satisfied the restitution judgment in 2008.⁹ Although the attorney filed personal bankruptcy in 2001, the record reveals that he is satisfying his delinquent tax obligations to the state and federal governments.¹⁰

¶ 6 The reinstatement hearing was held before the trial panel on April 2, 2009. The trial panel issued is report on May 4, 2009 determining that Mumina had presented clear and convincing evidence of all the factors necessary for reinstatement and recommending the same. On the same date, the Bar Association filed its application for the assessment of costs in the amount of $2,796.78. Although Mumina waived the right to file an opening brief, he did file a reply to the Bar Association's response brief. The briefs were filed on April 1, 2009 and May 26, 2009, respectively, completing the briefing cycle.

JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF

¶ 7 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of practitioners of the law. The duty is vested solely in this department of government.¹¹ Our determinations are made de novo.¹² Although given great weight,¹³ neither the findings of fact of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.¹⁴ We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.¹⁵ A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.¹⁶ Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facia showing that the attorney has not engaged in improper conduct during the suspension period.¹⁷

¶ 8 An applicant seeking reinstatement to the practice of law bears a heavy burden which is the same whether the attorney was disbarred or resigned pending disciplinary proceedings.¹⁸ Before being readmitted to the practice of law, it must be established that the lawyer's conduct will conform to the high standards required of a member of the Oklahoma Bar. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied.¹⁹ The petitioner must present stronger proof of qualifications than one seeking first time admission.²⁰ Furthermore, the more severe the disciplinary offense, the heavier the burden the attorney must overcome to gain reinstatement to the Bar Association.²¹

¶ 9 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 OS.2001, Ch. 1, App. 1-A requires the trial panel to make specific findings regarding whether the petitioner: 1) possesses the good moral character which would entitle the attorney to be admitted to the Bar Association; 2) has engaged in the unauthorized practice of law during the period of suspension; and 3) possesses the competency and learning in the law required for admission to the practice of law in the State of Oklahoma. In addition, this Court considers the following eight factors in making a reinstatement decision: 1) the applicant's present moral fitness; 2) demonstrated consciousness of the conduct's wrongfulness and the disrepute it has brought upon the legal profession; 3) the extent of rehabilitation; 4) the original misconduct's seriousness; 5) conduct after resignation; 6) time elapsed since suspension; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal competence.²² Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.²³

¶ 10 a. The clear and convincing evidence supports the attorney's readmittance to the practice of law in Oklahoma.

¶ 11 Mumina asserts that he has presented evidence sufficient to satisfy all factors considered in a reinstatement proceeding. The Bar Association's position differs. It asserts that the attorney has failed to present clear and convincing evidence of factors necessary to allow his return to the practice of law in Oklahoma.²⁴ Specifically, the Bar Association argues that: 1) Mumina failed to present stronger proof of his present moral fitness to practice law than would a first-time applicant for admission; 2) a lack of information exists evincing the attorney's consciousness of his wrongful conduct, the disrepute his actions brought upon the legal profession, and Mumina's rehabilitation; and 3) the severity of the attorney's misconduct both in relation to having mishandled his firm's funds and in having been imprisoned for his actions as a trustee in bankruptcy are sufficient, in and of themselves, to deny reinstatement. We determine that the trial panel's recommendation for reinstatement is meritorious and disagree with the position taken by the Bar Association.

1) The attorney presented stronger proof of his present moral fitness to practice law than would a first-time applicant for admission.

¶ 12 Fourteen witnesses appeared before the trial panel in support of Mumina's reinstatement. State Representative Mike Shelton (Shelton/Representative) testified that the attorney's earlier misdeeds had not affected adversely the attorney's leadership in the community and that he would have no hesitation in employing him as an attorney. Not only did Shelton provide an unqualified recommendation for reinstatement, he testified that the attorney's inability to practice was a detriment to the Representative's constituents.²⁵ A retired long-time prosecutor in the United States Attorney's Office for the Western District of Oklahoma stated that he would welcome Mumina's reinstatement and was confident that the attorney would be a valuable contributor to the city, to the judicial system, and to the Bar.²⁶ Two sitting District Court Judges, with knowledge of both the complaint filed against the attorney and the federal indictment, recommended reinstatement. One of the judges actively encouraged Mumina to seek the same.²⁷ The lawyer for whom Mumina has been doing para-legal work testified that, during the five years of their association, the attorney has been forthright, honest, and completely trustworthy. In addition, the lawyer testified that throughout the same time period, Mumina had demonstrated his fitness, moral character, and competency in the law.²⁸

¶ 13 Three attorneys testified against Mumina's reinstatement. Two of the three were members of the firm from which the attorney misappropriated funds and the third was the attorney hired to handle the firm's bar complaint against the attorney. Despite their concerns about reinstatement, one of the attorneys testified that Mumina was one of the most qualified attorneys he had ever encountered.²⁹ The other stated that he believed that Mumina's actions had been out of character for the attorney and that he had no knowledge of Mumina's present fitness to return to the practice of law.³⁰ The third witness for the Bar Association was the attorney hired by the firm to prosecute the bar complaint. He took no position on the issue of reinstatement.³¹

¶ 14 We do not ignore either the serious nature of Mumina's transgressions or the steep hill he must climb before he may be considered for reinstatement. All that is required of a first-time applicant is that the individual show that he or she has “good moral character, due respect for the law, and fitness to practice law” without any demand of proof of the same.³² When viewed in its entirety, the evidence goes well beyond those requirements and is clear and convincing³³ in support of the attorney's present moral fitness to return to the practice of law in Oklahoma.³⁴

2) Mumina's consciousness of his wrongful conduct, the disrepute his actions brought upon the legal profession, and the attorney's rehabilitation.

¶ 15 The basis of the Bar Association's allegations that Mumina has not taken full responsibility for his wrongdoing appears to center on the attorney having testified about certain “stressors” which were taking place at the time he committed his transgressions. Those instances include his wife being diagnosed with a life-threatening illness and losing her job, feeling disappointed with his compensation package at the firm, and his child having attempted suicide because she did not have adequate attention from him in his role as a parent. At the same time, Mumina was attempting to finance a play, with monies from the bankruptcy estate of a nursing home, to save it from closing and the residents being relocated.³⁵

¶ 16 The attorney did state that he believed all these factors had some impact on his actions. Nevertheless, when questioned about the monies taken from his firm and in his position as a trustee in bankruptcy, Mumina freely admitted that there was “nothing right” about him having taken the funds.³⁶ He stated that he breached a fiduciary duty and all trust with the firm when he took client monies as his own, that there was “no doubt” that he had done so.³⁷ When asked why he pled guilty to the indictment in federal court, he responded that he did so because he “was guilty.”³⁸ Although making full restitution will not necessarily preclude disbarment or insure reinstatement,³⁹ another factor which indicates the attorney's consciousness of the wrongfulness of his conduct is his restitution to the law firm and in the bankruptcy proceedings.⁴⁰

¶ 17 Mumina understands the extent to which his actions harmed the legal profession and he is shamed by his misconduct.⁴¹ While under suspension, Mumina spent time with law students and young attorneys. He spoke of his downfall and what he believed to be the cause of his actions and how he would suggest that the individuals avoid the pitfalls he faced. The attorney explained that he waited an extensive period of time before requesting reinstatement because he wanted to be certain that the factors he rationalized as a basis for his actions were no longer present in his life or were under control.⁴²

¶ 18 The evidence demonstrates that Kumina realizes that his actions were wrong. He has taken full responsibility for those actions. The attorney has made full restitution to the law firm and in the bankruptcy proceedings. Rather than stand trial for an offense he knew he committed, he pled guilty and served his sentence in a federal facility. The attorney waited an extended period of time before attempting to be reinstated and worked on ensuring that he would not place himself in a position to commit similar acts in the future. He explained his downfall to those entering the legal profession in an attempt to help them to avoid similar pitfalls. All these factors combine to convince this Court that Kumina demonstrated consciousness of his wrongful conduct and the disrepute it brought upon the profession and that he has provided evidence of his rehabilitation.

3) The severity of the attorney's misconduct does not prevent reinstatement.

¶ 19 Multiple witnesses testified that they would be ready and willing to employ Kumina as their personal legal counsel. It was emphasized that the attorney's return to the practice of law was important to the community within which he is active. Kumina's aberrant behavior spanned a period of about fifteen months during a time period when relationships were not healthy either in his working environment or on the home front. The attorney did not seek reinstatement until well after the time period when he would have been eligible to file such a petition because he was aware than he needed to remove some stressors from his life and learn to handle others. He has made complete restitution to both entities involved in his misappropriation activities and is making every effort to satisfy his delinquent taxes. Kumina has worked with young lawyers in an attempt to instruct them on how to avoid the situation in which he found himself. He is repentant for his wrongdoing and embarrassed for the disrepute he has brought on his profession.

¶ 20 There is absolutely no evidence that the attorney has engaged in any activity since his resignation which would adversely reflect on his ability to return to the practice of law, including the unauthorized practice of law while under suspension. There is ample evidence indicating that Kumina has remained competent through acting as a paralegal, reading Bar Journals, and participating in Continuing Legal Education Courses.

¶ 21 The more severe the offense the heavier the burden the applicant must overcome to gain reinstatement. However, each application for reinstatement must be considered on its own merits. It will fail or succeed on the evidence presented and the circumstances of the attorney's case.⁴³ Furthermore, a lawyer's commission of a felony or other grave misconduct is not an insurmountable barrier to reinstatement.⁴⁴

¶ 22 Our primary duty is to protect the public, the judiciary and the legal profession. Therefore, we take our responsibility of passing on an application seeking reinstatement for one who has previously failed to meet the profession's standards with utmost seriousness.⁴⁵ Before reinstating an attorney to the Bar Association, the Supreme Court must have a firm conviction that the lawyer will not engage in similar misconduct.⁴⁶ Even considering the testimony of the three attorneys opposing reinstatement, the quality and quantity of evidence in favor of reinstatement convinces us that Kumina will provide, once again, valuable services to clients, the practicing bar, the judiciary, and his community.

CONCLUSION

¶ 23 Under the particular evidentiary facts and circumstances in this matter, we find the Bar Association's opposition to reinstatement unwarranted and agree with the trial panel's unanimous recommendation of reinstatement. Members of the judiciary and the practicing bar have placed faith in Mumina's ability to contribute to the legal profession, the judiciary, and his local community. We trust that we will not be faced with the unpleasant task of reviewing any future allegations of misconduct.

¶ 24 Upon a de novo review,⁴⁷ we grant the attorney's application, supported by clear and convincing evidence.⁴⁸ Reinstatement is conditioned upon the attorney's payment of $2,796.78 in costs of the proceeding.⁴⁹

PETITION FOR REINSTATEMENT GRANTED; PETITIONER ORDERED TO PAY COSTS OF $2,796.78.

I dissent to the reinstatement of the Respondent. He is a thief. He stole over $50,000.00 from his law firm and actively attempted to conceal the theft. He was a court-appointed trustee and stole over $100,000.00 from a bankruptcy estate. He is a convicted felon. He made restitution and apology only after being discovered and confronted.

The Respondent does not meet, by clear and convincing evidence, the very strict test set out in Rule 11.4 RGDP which requires that “An applicant seeking such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time.” (emphasis added) If today, with his record, he was seeking admission to the Bar for the first time he would certainly, absolutely and rightfully be denied.

This Court has a primary obligation to safeguard the interests of the public and to protect the integrity of the legal profession. If Rule 11.4 RGDP is to have any meaningful enforcement at all, this Respondent's application for reinstatement must be denied. His qualifications are not stronger than anyone seeking admission for the first time. No first-time applicant with the Respondent's record would be admitted to the Oklahoma Bar Association. That is the standard required by the RGDP and it has not been followed in this case.

WATT, J.

EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WATT, COLBERT, REIF, JJ. concur. TAYLOR, V.C.J. and WINCHESTER, J. dissent.