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In Re The Matter of Timothy [1992] MHSC 10; 1 MILR (Rev) 275 (13 August 1992)

1 MILR (Rev.) 275

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

DISCIP. PROC. NO. 1990-01

IN RE: THE MATTER OF ANIBAR L. TIMOTHY,
Practitioner.

REVIEW OF THE HIGH COURT'S ACTION ON A DISCIPLINARY MATTER

AUGUST 13, 1992

LIBKUMAN, A.J. pro tem¹
ASHFORD, C.J., and KING, A.J. pro tem²

SUMMARY:

Timothy, a trial assistant, was suspended from practice by the High Court, which held that Timothy's criminal conviction of violation of 31 MIRC Ch. 1, §§ 5 and 38, involved actions of sufficient moral turpitude as to violate Rule 6 of the "Order Creating Standing Committee on Professional Conduct." Timothy appeals to this Court, claiming the criminal conviction has now been vacated pursuant to 31 MIRC Ch. 1, §§ 70(4) and (5) and thus his disciplinary sanctions should be set aside. He also alleges there was insufficient evidence of any violation of Rule 6. Affirmed.

DIGEST:

1. TRIAL ASSISTANTS – Suspension and Disbarment: Criminal conviction of violation of 31 MIRC Ch. 1, §§ 5 and 38 involves actions of sufficient moral turpitude as to clearly violate Rule 6 of the "Order Creating Standing Committee on Professional Conduct."

2. TRIAL ASSISTANTS – Same: The findings and recommendations of a trial court in a disciplinary proceeding will be set aside only when "clearly erroneous."

3. TRIAL ASSISTANTS – Same: The fact that a criminal conviction under 31 MIRC Ch. 1, §§ 5 and 38 is vacated pursuant to 37 MIRC Ch. 1, § 70(4) and (5) does not negate disciplinary findings based on said conviction and does not render appeal moot.

OPINION OF THE COURT BY LIBKUMAN, A.J.

This Disciplinary Proceeding No. 1990-1 is being reviewed pursuant to Rule 5 of the Court's "Order Creating Standing Committee on Professional Conduct." Rule 5 provides, in part, that the Supreme Court shall review the findings and recommendations of the High Court as well as the files and transcripts in a disciplinary proceeding and issue a final order. The High Court's "Findings and Recommendation for Disciplinary Action," dated April 9, 1991, relating to Anibar L. Timothy, have been reviewed in this proceeding along with the file and transcript. In addition, counsel have been allowed to present oral argument, heard by this Court on July 28, 1992.

Briefly, the disciplinary proceeding against Anibar L. Timothy (hereafter "Timothy") was commenced on June 27, 1990, by the Standing Committee on Professional Responsibility. After a hearing on March 27, 1991, the High Court on April 9, 1991, entered its "Findings and Recommendations for Disciplinary Action," which recommended Timothy be suspended from the practice of law for a period of two years.

The legal basis of the High Court's findings against Timothy was that he had violated Rule 6 of the "Order Creating Standing Committee on Professional Conduct," which Order incorporated various Disciplinary Rules of the American Bar Association, all recited in the High Court's "Findings and Recommendations for Disciplinary Action." The factual basis of the disciplinary action was that Timothy had received legal fees in four cases from clients, then "under false pretenses and with the intent to defraud," attempted to obtain money from the Government legal services fund for these same legal services. The High Court found that this conduct violated Rule 6 of the "Order Creating Standing Committee on Professional Conduct."

At the hearing, only one witness was presented against Timothy, the Chief Clerk of Courts who presented certified copies of Timothy's "Judgment" of conviction and "Judgment of Sentence" in Criminal Case No 1990-05. The High Court also took judicial notice of Timothy's Admission to Practice Law as a Trial Assistant and his Order of Admission. In addition, Timothy testified on his own behalf, maintaining his innocence and stating his convictions were under appeal.

We now affirm the "Findings and Recommendations for Disciplinary Action" of the High Court.

[1,2] We found no basis for setting aside the criminal conviction in Criminal Case No. 1990-05. See, RepMar v. Timothy, 1 MILR (Rev.) 270 (Aug 13, 1992). The convictions of the offenses charged in that case, namely violations of 31 MIRC Ch. 1, §§ 5 and 38, involved actions on the part of Timothy of sufficient moral turpitude as to clearly violate Rule 6 of the "Order Creating Standing Committee on Professional Conduct" and the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, all as set forth in the "Findings and Recommendation for Disciplinary Action." We will not set aside the findings of fact of the High Court in this disciplinary proceeding unless said findings are clearly erroneous, which is the standard of review in most jurisdictions for both civil and criminal cases. See Abner, et al. v. Jibke, et al. 1 MILR (Rev.) 3 (Aug 6, 1984); United States v. United States Gypsum Co., [1948] USSC 44; 333 U.S. 364 (1948); and State v. Patterson, 58 Haw. 462, 571 P.2d 745 (1977), citing numerous other cases. While there is a split of opinion in various jurisdictions as to the admissibility of a criminal conviction in a civil case, the criminal convictions were properly admitted in this disciplinary proceeding. Timothy had a complete trial and opportunity to be heard in the disciplinary proceeding. This Court has found no error, much less clear error, in the High Court's "Findings and Recommendation For Disciplinary Action." Because said findings were based at least in part on the criminal conviction, this Court heard argument on the appeal of that conviction as well.³ No basis for setting the conviction aside was found. See RepMar v. Timothy (S.Ct. Criminal No. 90-03), filed contemporaneously herewith.

[3] Timothy argues the Supreme Court cannot consider his criminal conviction in Criminal No. 1990-03 because that conviction has now been vacated by operation of law and he is entitled to be discharged pursuant to 31 MIRC Ch. 1, §§ 70(4) and (5). In essence, those sections provide that a sentence is vacated and the defendant may be discharged where he does not violate his probation. First, it is not clear whether Timothy has moved to have the convictions vacated. Assuming he has, we hold that the convictions can still be used as the basis for a disciplinary proceeding against Timothy. Timothy received a one-year probation for each of the four Counts in the criminal case, which were to run concurrently from about October 26, 1990. The criminal charges were a matter of record when the disciplinary action was commenced on June 27, 1990. The criminal conviction was a matter of record when the hearing on the merits before the High Court was held on March 27, 1991, and when the High Court issued its "Findings and Recommendations for Disciplinary Action" on April 9, 1991. Timothy was not eligible to have his convictions vacated until on or after October 26, 1991. Even though the "Findings and Recommendation for Disciplinary Action" does not become final until reviewed by the Supreme Court, the hearing on the merits before the High Court was held and the High Court's recommendations were made before the criminal convictions were or could have been vacated. To require the High Court to conduct a second trial on the same issues merely because the purposes of the proceedings were different (criminal prosecution and attorney discipline) would not be reasonable or practical. Timothy had his opportunity to be heard both in the criminal and the disciplinary actions and did testify in both proceedings. Although he had the opportunity to present other evidence in the disciplinary proceeding, he did not do so. He was given a fair hearing in the disciplinary proceeding and we will not now vacate or reverse the "Findings and Recommendations for Disciplinary Action" of the High Court merely because the criminal convictions have been vacated pursuant to 31 MIRC Ch. 1, §§ 70(4) and (5).

Order: We affirm the High Court's "Findings and Recommendations for Disciplinary Action" and impose the following discipline on Timothy pursuant to Rule 5 of the "Order Creating Standing Committee on Professional Conduct":

1. Timothy is suspended from the practice of law for two years. The interim suspension imposed by the High Court shall be credited towards this two-year suspension, and thus Timothy may again become eligible to practice law as a Trial Assistant on October 25, 1992.

2. On October 25, 1992, Timothy can petition the High Court for reinstatement upon a showing that:

a. He has successfully completed his probation in Criminal Case No. 1990-05;

b. He has not engaged in the practice of law during the term of his suspension;

c. He has had no criminal convictions during the term of his suspension;

d. He is a fit person to engage in the practice of law; and

e. He has served upon the Standing Committee on Professional

Responsibility a copy of his petition and has cooperated with the Committee in its investigation on his fitness to practice law.

Douglas F. Cushnie for Anibar L. Timothy
Philip A. Okney for Standing Committee on Professional Responsibility

_________

¹Ronald D. Kibkuman, ESq. of the Hawaii State Bar, by appointment of the Cabinet.

²Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, by appointment of the Cabinet.

³The appeal was heard notwithstanding the fact that defendant was entitled to have the judgment vacated pursuant to 31 MIRC Ch. 1, §§ 70(4) and (5) and the appeal was thus moot.