Greene v. Kentucky Bar Ass'n

OPINION AND ORDER Glenn L. Greene Jr. has filed an application for reinstatement to the practice of law in the Commonwealth of Kentucky after having been disbarred in 1974. Greene has, through great effort and after many years, been able to rehabilitate himself and merit reinstatement. We will detail his misconduct and rehabilitation. Green was disbarred following his guilty plea to the federal offense of mail fraud. He defrauded 26 investors of a total in excess of $250,000. Greene served one year in prison before being released on parole in August, 1974. One of the conditions of his probation was that he pay 25% of his gross income to his victims, pro rata, during the five-year probationary period. As a result of the court-ordered restitution, approximately $105,000 was distributed to the defrauded investors at the end of Greene’s probation in 1979. Prior to his criminal indictment, Greene voluntarily paid restitution in excess of $10,000. In January 1982, Greene entered a thirty-day in-patient treatment program for alcohol abuse. Greene followed that program with participation in Alcoholics Anonymous. He has been active in AA and “clean and sober” since 1982. The resolution of his problem with alcohol has also resolved his gambling problem which was an offshoot of and fueled by his alcohol abuse. Also in 1982, Greene filed an application for reinstatement with the Kentucky Bar Association. At the time of his 1982 application, Greene had substantial debts, most of which were due to unpaid taxes dating from the period he was paying 25% of his gross income in court-ordered restitution. He had filed tax returns for the periods he was unable to pay and had entered into a payment plan with the IRS. Greene’s application was ultimately denied based on Greene’s failure to make any restitution other than that ordered by the federal court, lack of any definite plan to make restitution, and substantial debts which placed him in a similar financial position to that when he defrauded the investors. Greene filed another application for reinstatement in 1987. That application was accompanied by a Voluntary Restitution Plan for the defrauded investors. Greene voluntarily withdrew his application in 1988 because of his ongoing financial problems and was forced to abandon his restitution plan after paying an additional $1,263.62 to the investors. In 1990, Greene filed for bankruptcy and discharged over $200,000 in credit card debts and bank loans. The discharged debts were incurred over a period of time, many of them after his incarceration while paying the court-ordered restitution, and his debts continued to increase after that time. After his [235] probationary period, Greene was engaged in a payment plan to the IRS, and he provided financial assistance to his six children to aid in paying for college (financial aid which Greene now acknowledges he could not really afford). Greene borrowed heavily during this period, utilizing bank loans and credit cards. In 1990, Greene owed $71,000 in federal taxes. He now has no outstanding tax obligations to any state or federal authority. Since 1990, Greene has also repaid approximately $10,000 to the Bank of Harlan for loans which were discharged in the bankruptcy. In December 1992, Greene filed his current application for reinstatement. In 1994, he filed a Voluntary Restitution Plan indicating he would pay 5% of his after tax income into an escrow account with distributions to the defrauded investors to be made on a quarterly basis. The plan provides for quarterly reports to the KBA and acknowledges that continued compliance with the restitution provisions shall be a condition of his reinstatement to the KBA and failure to comply shall be grounds for revoking any reinstatement ordered by this Court. From June 1988 (when Greene abandoned his 1987 plan) to his renewed restitution plan in 1994, Greene had not made any restitution as he paid on his tax liabilities and some of the debts that were discharged in bankruptcy. As part of the 1994 plan, in March 1994 he distributed among the investors 5% of his after tax income from June 1988 through December 1992. He has since made additional distributions. Greene sent the defrauded investors a copy of his distribution plan and a letter indicating he had an application for reinstatement to the Kentucky bar pending in this Court. None of the investors have indicated any problems with the plan or with Greene’s application for reinstatement. Greene hopes to make full restitution to the defrauded investors in his lifetime, but also believes it is reasonably possible to complete restitution in five to seven years. He hopes to pay more than the minimum of 5% and testified it was quite possible he could pay in the neighborhood of $15,000 to $25,000 per year. Greene provided affidavits and testimony from individuals, including a U.S. district court judge and a bank president, who have known him, both personally and professionally, for a number of years. Testimony from these witnesses indicated many of Greene’s financial problems were due to the court-ordered restitution of 25% of his gross income. His current financial situation was characterized as “sound, very good.” Greene has been involved with AA and has not had a drink since 1982. The witnesses testified he has a good reputation for honesty and integrity and would be an able attorney and further testified they would recommend Greene as an attorney if he were reinstated. The bank president testified that Greene performed excellent title abstract work for Harlan attorneys and that he would recommend that the bank use Greene if he were reinstated. Testimony indicated Greene has straightened out his life and rehabilitated himself personally, professionally, and financially. Both the Character and Fitness Committee and the Trial Commissioner recommended that Greene be reinstated. The Board of Governors, by a vote of 10 to 7 recommended against reinstatement. In In re Cohen, Ky., 706 S.W.2d 882 (1986), we set out a number of factors to be determined in deciding whether an attorney should be reinstated to the practice of law. The Board of Governors focussed on one of those factors, the nature of the misconduct leading to disbarment, as the most significant factor. Although it is a factor, and Greene’s misconduct was very serious, it is not the most significant in determining whether an attorney should be reinstated. The “fact that one has transgressed does not forever place him beyond the pale of respectability.” In re May, Ky., 249 S.W.2d 798 (1952). Other factors are that the attorney manifest a sense of wrongdoing and realize the seriousness of his prior conduct, both of which Greene has done and Cohen did not do. Also, the attorney’s previous and subse [236] quent conduct in regard to the practice of law, should be considered. There is no indication of any problem with Greene’s law practice prior to disbarment, nor is there any indication Greene has engaged in the practice of law since his disbarment. The attorney’s conduct and character since disbarment also must show he is worthy of the public’s confidence and trust. Greene’s conduct and character, outside the financial realm, do show he is currently worthy of public trust. The bulk of Greene’s financial problems, culminating in his bankruptcy, stemmed from his original misconduct which resulted in his felony conviction and subsequent restitution and tax problems. Although Greene did not make the best financial choices in providing financial assistance he could not afford to his children, and his 1990 bankruptcy is troubling, Greene’s circumstances warranted turning to the remedy provided by federal law for persons in such situations and should not exclude his reinstatement. Greene’s current financial situation is sound. His only debts now appear to be restitution to the defrauded investors. “The ultimate and decisive question is whether the applicant is now of good moral character and is a fit and proper person to be reentrusted with the confidence and privilege of being an attorney at law.” In re Cohen, supra at 884. In Cohen, Bernhardt Cohen did “not appreciate the nature and quality of his original mistake,” Id. at 834, and he “was less than candid with the Character and Fitness Committee.” Id. at 835. Neither is true in Greene’s case. Also, in Cohen, the trial commissioner found there was “an overwhelming lack of evidence” on which to support Cohen’s reinstatement and this Court concluded that the evidence lacked the “persuasive quality necessary to induce belief in the applicant’s present professional competency and good moral character.” Greene has persuasively shown his present professional competency and good moral character. In a case similar to Greene’s, Ollie James Cohen in In re Cohen, Ky., 401 S.W.2d 54 (1966), made no attempt to satisfy a civil fraud judgment rendered against him ten years prior to his application for reinstatement. The KBA found that this failure, including the failure to contact the wronged persons or arrange for future payment, indicated Cohen’s failure to be rehabilitated. In addition, the KBA pointed out several instances of Cohen’s behavior which were inconsistent with the good character necessary to be reinstated, and Cohen produced very little evidence of any substantial facts which tended to show any significant rehabilitation. In this case, testimony indicated that Greene’s failure to make restitution payments was due to his financial condition and not due to lack of rehabilitation. He has contacted the wronged persons, has arranged a repayment plan and is currently making restitution. Also, Greene has produced affidavits and testimony regarding specific and substantial facts tending to show significant rehabilitation — his lifestyle, personal life and financial situation have all changed. The application of Glenn L. Greene Jr. for reinstatement to the practice of law in the Commonwealth of Kentucky is hereby approved, subject to completing the requirements of SCR 3.500(3), including the successful passage of the Bar Examination, and payment of costs and on the following conditions: 1) Greene continue to make restitution payments of at least 5% of his after-tax income to the defrauded investors; and 2) Greene provide quarterly reports to the KBA on the progress of restitution. Failure to comply with either of these conditions shall be grounds for revoking his license to practice law. LAMBERT, LEIBSON, REYNOLDS and STUMBO, JJ., concur. WINTERSHEIMER, J., dissents by separate opinion. FUQUA, J., not sitting.