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IN RE: the REINSTATEMENT OF James E. GOLDEN, Jr. to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
¶ 1 We imposed the most severe of disciplines on the applicant effective December 3, 2007, disbarring1 Golden and removing his name from the Roll of Attorneys. These sanctions arose from Golden's having pled guilty to the federal felony charge of misprision.2 His actions resulted in significant economic harm to many individuals and to the health care system as a whole, embarrassment to the legal profession and to this Court, and an undermining of public confidence in the Bar Association and its members.3
¶ 2 Upon de novo review,4 we determine that the applicant did not present clear and convincing evidence5 necessary for his readmittance to the practice of law in Oklahoma and that he should be responsible for costs of the proceeding in the amount of $2,129.26.6 Golden most certainly did not demonstrate stronger proof of qualification than one seeking admission for the first time.7 The evidence concerning the current state of the applicant's good moral character did not rise to the level of clear and convincing and could in no way be considered as establishing stronger evidence than would have been required of one seeking first time admission. Furthermore, multiple other factors militate against reinstatement, including: the fact that at the same time Golden presented himself as among the most ethical in the profession, the applicant engaged in activities he knew to amount to misconduct; a lack of convincing remorse; the failure to make concerted efforts to repay monetary penalties; and the swiftness with which he sought reinstatement following the period of disbarment.
FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS
¶ 3 The applicant was admitted to the practice of law on May 8, 1981. On April 22, 2008, we disbarred Golden for his active participation in a health care fraud cover-up and a scheme to defraud his client's employees of their pension funds. The applicant pled guilty to the crime of misprision of a felony, receiving a three-year probated sentence, including five months of supervised curfew, and an order to pay restitution in the amount of $5,719.340.22. It is unnecessary to repeat the detailed facts of the proceeding as they appear in State ex rel. Oklahoma Bar Ass'n v. Golden, 2008 OK 39, 201 P.3d 882.
¶ 4 Golden's disbarment ran from December 3, 2007, the date of this Court's order of immediate interim suspension. On April 10, 2013, approximately five months after the running of the five-year disability to practice law, Golden filed for reinstatement pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A. The hearing on reinstatement was held before the trial panel on June 27, 2013. The trial panel issued its report on July 25th determining that Golden had not met his burden of proof for reinstatement, recommending that this Court deny reinstatement and impose costs. On July 29, 2013, the Bar Association filed an application to assess costs in the amount of $2,129.26. The order setting a briefing schedule issued on July 31, 2013. The briefing cycle was completed on September 23, 2013 with the applicant's waiver of the filing of a reply brief.
JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF
¶ 5 It is this Court's nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.8 Our determinations are made de novo.9 Although given great weight,10 neither the finding of facts of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.11 We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.12 A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.13 Attorneys suspended for disciplinary reasons will not automatically be reinstated on a prima facie showing that the attorney has not engaged in improper conduct during the suspension period.14
¶ 6 Before an attorney who has been disbarred may be readmitted to the practice of law, it must be established that the applicant'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.15 The applicant must present stronger proof of qualifications than one seeking first time admission.16
¶ 7 Rule 11.5, Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A requires the trial panel to make specific findings regarding whether: 1) the applicant possesses the good moral character which would entitle him to be admitted to the Bar Association; 2) the applicant has engaged in the unauthorized practice of law during the period of suspension; and 3) the applicant 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 the resignation; 7) the applicant's character, maturity, and experience when suspended; and 8) present legal competence.17 Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.18
¶ 8 a. The applicant has not demonstrated the clear and convincing evidence necessary for his readmittance to the practice of law in Oklahoma.
¶ 9 Golden relies upon testimony elicited from his witnesses for the proposition that he met the standard of clear and convincing evidence related to his: good moral character, the same being higher now than at disbarment; lack of unauthorized practice of law; present competency in the law; and remorse. The trial panel found that the applicant: satisfied the requirements of Rule 11.1(a), Rules Governing Disciplinary Proceedings, 5 O.S.2011, Ch. 1, App. 1–A;19 had not required client security funds to be expended; had not engaged in the unauthorized practice of law during the disbarment period, and had maintained his competency and learning of the law. Nevertheless, the trial panel noted its most serious concern involved the area of good moral character and rehabilitation stating that “(t)here was no testimony as to any change in Applicant's behavior which would give rise to a feeling of confidence that under the same circumstances Applicant would behave differently.” It determined that Golden had not offered proof sufficient to overcome the former adverse judgment of this Court or that would establish, if readmitted, the applicant would conform to the high standards required of a member of the Bar Association. Both the trial panel and the Bar Association recommend that we deny reinstatement and impose costs of the proceeding. We agree with these recommendations.
¶ 10 1) Golden presented no clear and convincing evidence demonstrating that he currently maintains the good moral character expected of a practitioner of the law or that the state of his character would exceed that of an applicant seeking first time admission.
¶ 11 The applicant presented eight witnesses opining that they considered Golden to be a person of good moral character. One based his opinion primarily on the applicant's role as a father20 while others grounded theirs on the fact that they believed he had the same moral characteristics when he was involved in the scheme resulting in his plea agreement.21 Several of the witnesses maintained little to no contact with Golden since he was disbarred.22 Only one witness, who had encountered the applicant from time-to-time during his suspension, indicated that he thought that Golden had “a higher moral commitment to maintaining his integrity in the profession.”23 Golden's characterization of his current moral compass was that he was “more so than ever committed to high standards of ethics.”24
¶ 12 The Bar Association likens the testimony regarding Golden's moral character to that found wanting in Matter of Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043. We agree with the comparison.
¶ 13 Hird sought reinstatement after pleading guilty to one count of bank fraud and one count of money laundering. The pleas resulted from Hird's becoming involved in a fraudulent scheme to make his corporate employer appear to be better capitalized to federal examiners than it actually was. The analysis in Hird, supra at ¶ 18, on the issue of establishing good moral character is worthy of being repeated here:
“Good moral character,” as used for bar admission, is synonymous with ethical fitness. As evidence of his current moral character, Hird presented several witnesses that testified to Hird's involvement in his community and church and his trustworthiness. These are the same characteristics that Hird possessed before his conviction. Hird has failed to show that under pressures and circumstances similar to those which led to his past conduct, he would not act differently. Hird has presented insufficient evidence to show a change in moral character since his resignation. [Emphasis supplied.]
¶ 14 Under Hird, supra, the testimony by individuals, having little to no contact with the applicant during disbarment, that Golden possesses the same characteristics today as those he had during the time he was involved in misconduct leading up to his plea agreement falls far short of establishing the clear and convincing evidence necessary for reinstatement.25 It most certainly cannot be considered as establishing stronger evidence than would have been required for first time admission.26
¶ 15 2) In addition to Golden's having failed to demonstrate the moral character factor, there are multiple other deficiencies militating against reinstatement: at the same time that he presented himself as among the most ethical in the profession, the applicant engaged in activities he knew to amount to misconduct; a lack of convincing remorse; the failure to make concerted efforts to repay monetary penalties; and the swiftness with which the applicant sought reinstatement following the period of disbarment.
¶ 16 Perhaps the most concerning factor to this Court is that there is no question that Golden, at the time he engaged in the underlying scheme, was a bright, talented, up-and-coming professional who had to understand that his misconduct made a hypocrisy of the legal profession. Based on their knowledge of the applicant during the period when the misconduct occurred, without exception, the judges and fellow attorneys testifying on Golden's behalf praised his legal skills, his learning of the law, and the way he presented himself in the courtroom, in negotiations with fellow attorneys, and to the public. Each and every individual thought that the applicant presented himself as an outstanding representative of the profession. At the same time these opinions were being formed, Golden was both participating in an unethical and illegal scheme and in law-related activities which undoubtedly made him hyper-sensitive to the criminal activities he participated in and facilitated.
¶ 17 The fraudulent scheme in which the applicant was involved and helped to facilitate began as early as May of 1999. By his own testimony, Golden admitted that while he was acting dishonestly, he was advising other attorneys about their “possible ethical pitfalls .”27 No doubt, he felt well equipped to do so. After all, in 1986, he chaired the Young Lawyers Division and received the award for Outstanding Young Lawyer. Golden's activities also included service on the: Law Related Education Committee; Bar Center Facilities Committee (2004–2007); Professional Responsibility Tribunal (1991–1997); Bench & Bar Committee (1988–1989); Professional Committee to review Model Code of Judicial Conduct (1991); Chair, Legal Ethics Committee (2005–2007); Civil Procedure Committee; and Budget Committee (1989–1990). His service to the Bar Association was considered laudable at the time, and in other circumstances might support mitigation. Here, it simply magnifies the fact that Golden's actions amounted to creating a hypocrisy of himself as a lawyer and the legal profession in general.
¶ 18 Although acknowledging the harm he caused the Bar Association, the community, and other individuals through his misconduct when asked about his remorse, Golden seemed most concerned with what his actions had cost him as an individual. He lamented having ruined his marriage and having damaged the relationship he had with his daughter. The applicant cited his resulting depression, feelings of guilt, and the loss of association with fellow attorneys and his reputation as factors related to his remorse.28 He has also expressed his remorse in similar terms to at least one of the witnesses.29
¶ 19 Initially, Golden denied that his actions had any adverse effect on pension holders who lost their investments as a result of his actions.30 When he was called to testify in this cause, he had not apologized to any of the employees who lost their retirements because of his actions.31 After testifying, and before the Bar Association presented its complaining witness in the original grievance leading to disbarment, he did approach the witness and apologize.32
¶ 20 Making full restitution to a lawyer's victims will neither preclude discipline nor insure reinstatement.33 Nevertheless, the efforts made by an attorney to make restitution are germane in a reinstatement proceeding.34 Pursuant to an agreement limiting the charges brought against him, Golden agreed to make restitution of $5,719,340.22. However, in the hearing before the trial panel, he attempted to shift the blame to his lawyer for having agreed to such a large amount saying that his attorney didn't advise him that he would be agreeing to pay such a large sum and that he did not understand that the liability would be joint and severable with his co-defendant/former client.35
¶ 21 At the time of the reinstatement proceeding, by his own testimony, Golden had paid back something in excess of $100,000.00.36 Although originally he was making monthly payments in the amount of $500.00, for the last two years before the hearing that amount had reduced to $100.00. This is so primarily because the applicant remained unemployed during this period, choosing not to look for a job outside the legal profession. His excuse for doing so was that he didn't want to take a menial job in case a legal one came along.37
¶ 22 Besides the applicant's failure to work since the summer of 2011, there is another troubling issue related to restitution and to what Golden refers to as his “estate planning” which he characterizes as having been done because he was feeling “mortal.” Through the establishment of an irrevocable trust in 2001 and in divorce proceedings thereafter, Golden was able to protect the bulk of his assets to ensure that his wife and child could continue to live in the family home and the child would be guaranteed funds for her education. The applicant insists that the establishment of the trust, his foregoing interests in the property settlement and transferring those assets to his child, and his failure to list these items on his financial disclosures to the government had nothing to do with any effort to hide assets or his fear of being criminally charged for his misdeeds. However, when questioned by a trial panel member, Golden admitted that he realized he had crossed the ethical line as early as 1998, some three years before creation of his trust.38
¶ 23 Golden's testimony concerning his reason for setting up the trust simply will not pass the “smell test.” It reeks of the appearance of impropriety. Clearly, the applicant successfully took steps to protect assets for his family at the same time that he was involved in a scheme which caused others to lose their retirement funds, leaving them and their loved ones without the protections Golden ensured for his own wife and child.
¶ 24 Golden was disbarred effective December 3, 2007. He filed for reinstatement on April 10, 2013, some five years and less than five months later. Considering the seriousness of his conduct, the disrepute his actions brought on the profession, the judiciary, and this Court, and the lack of a concerted effort to make significant headway on the agreed restitution while protecting assets for his own family, the filing for reinstatement strikes this Court as premature.
¶ 25 Multiple other factors militate against Golden's reinstatement. At the same time the applicant presented himself as among the most ethical in the profession, he engaged in activities he recognized amounted to misconduct. Golden's testimony tends to indicate that he's remorseful primarily because of the consequences to himself and his family but it demonstrates a lack of convincing remorse for the victims of his misconduct. The applicant has failed to make concerted efforts to repay monetary penalties and he was quick to seek reinstatement on the heels of the end of the period of disbarment.
¶ 26 We agree with the trial panel that the applicant has not engaged in the practice of law during the period of disbarment and that he appears to have kept abreast of the law. This Court also agrees that the most serious area of concern with Golden is the state of his current moral character. Other concerns also exist, including: the fact that at the same time Golden presented himself as among the most ethical in the profession, the applicant engaged in activities he knew to amount to misconduct; a lack of convincing remorse; the failure to make concerted efforts to repay monetary penalties; and the swiftness with which he sought reinstatement following the period of disbarment.
¶ 27 Our pronouncement today should not be conceived as a determination that the applicant may never be allowed to again practice law in Oklahoma.39 Nevertheless, in making a reinstatement decision, this Court must disregard feelings of sympathy,40 recognizing that the applicant's burden of proof is a heavy one.41 While we are concerned with any adverse effect reinstatement might have on the practicing bar, our foremost consideration is always to protect the public welfare.42 After having given due consideration to the evidence contained in this record and the appropriate factors examined in reinstatement proceedings, we determine that the applicant has failed to carry his burden to show by clear and convincing evidence43 that he is entitled to reinstatement. Therefore, reinstatement is denied and costs of $2,129.2644 are imposed.
PETITION FOR REINSTATEMENT IS DENIED; APPLICANT IS ORDERED TO PAY COSTS.
COLBERT, C.J., WATT, WINCHESTER, TAYLOR, COMBS, JJ., Concur. KAUGER, EDMONDSON, GURICH, JJ., Recused. REIF, V.C.J., Disqualified.
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Docket No: No. SCBD–5990.
Decided: November 19, 2013
Court: Supreme Court of Oklahoma.
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