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In re Wells

January 30, 2003

IN RE BYRON C. WELLS, APPLICANT.


An Applicant for Admission to the Bar of the District of Columbia Court of Appeals (E29513)

Before Schwelb and Washington, Associate Judges, and Nebeker, Senior Judge.

The opinion of the court was delivered by: Per Curiam

Applicant, Byron C. Wells, admitted making unwanted sexual advances to between ten and twenty young male clients in the mid-1980s. In 1987, he was arrested and charged with five counts of battery. Pursuant to a plea agreement, Wells admitted committing one count of misdemeanor battery, and the prosecution dismissed four of the counts and agreed to withhold prosecution with respect to the remaining count, subject to Wells' participation in a pretrial diversion program. Wells successfully completed the diversion program, and the remaining count was dismissed. *fn1

As a result of his misconduct, the Supreme Court of Indiana suspended Wells from the practice of law for three years with a fitness requirement. In re Wells, 572 N.E.2d 1290 (Ind. 1991) (per curiam), cert. denied, 522 U.S. 864 (1997). Wells has twice sought and been denied reinstatement in Indiana. He now seeks admission to the bar of the District of Columbia. A three-member majority of the Committee on Admissions ("the Committee") recommends that we grant Wells admission to the bar. Two members dissented in an opinion written by the Committee's Chairman, Richard B. Nettler, Esquire. The Committee's majority and dissenting opinions are attached hereto.

When evaluating applications for admission to the bar, we afford some deference to the Committee's recommendations, making "due allowance for the Committee's opportunity to observe and evaluate the demeanor of the applicant where relevant, e.g., with regard to such attitudes as sincerity or remorse." In re Manville, 494 A.2d 1289, 1293 (D.C. 1985). In this case, however, the Committee members are sharply divided in their assessments of Wells' understanding of the wrongfulness of his conduct and his acceptance of responsibility for his actions. We consider that disparity when assessing the Committee's recommendation, keeping in mind that "the ultimate decision regarding admission or denial of admission remains for this court to make." Id. Moreover, we find it persuasive that the Supreme Court of Indiana has twice denied reinstatement, and has unanimously concluded with respect to Wells' most recent petition that

[t]he misconduct leading to the petitioner's suspension was grave. He used his advantage, power and control to attempt to inappropriately incite sexual relations with young men, some of whom had come to the respondent to seek his professional assistance. We have stated that the more serious the attorney misconduct, the greater its negative impact on future rehabilitation and eventual reinstatement and, accordingly, the greater the petitioner's burden of proof to overcome the implication of unfitness which is conjured by the misconduct. In the present case, our concerns about the sincerity of the petitioner's remorse and the integrity of his attitude towards and understanding of the standards imposed upon members of the bar, coupled with the severity of his misconduct, outweigh the evidence he presented concerning his rehabilitation and present fitness to practice law. In re Wells, No. 73S00-8904-DI-312 (Ind. Dec. 18, 1996) (citation omitted).

As in reciprocal discipline cases, we give great deference to the Indiana Supreme Court's decisions, for Indiana is Wells' jurisdiction of original admission. *fn2

Substantially for the reasons stated in Mr. Nettler's persuasive dissent, we conclude that Wells has failed to meet the burden imposed on him by D.C. Ct. App. R. 46 (e) of establishing by clear and convincing evidence that he presently possesses the good moral character required in order to practice law in this jurisdiction. Accordingly, we deny Wells' application for admission to the bar of the District of Columbia.

So ordered.

WASHINGTON, Associate Judge, dissenting:

I respectfully dissent from my colleagues' decision to deny Wells' application for admission to the bar of the District of Columbia. The Committee on Admissions' majority appropriately applied the Manville *fn3 factors and concluded that Wells satisfactorily demonstrated his good moral character and fitness to practice law. "In reviewing the Committee's determination that an applicant has met that burden, and its accompanying recommendation for admission, this court will accept findings of fact made by the Committee unless they are unsupported by substantial evidence of record . . ." In re Kleppin, 768 A.2d 1010, 1011 (D.C. 2001) (internal quotation and citation omitted). I am unable to conclude that the Committee majority's findings regarding Wells' rehabilitation lack evidentiary support in the record. At the same time, I believe the minority opinion relies too heavily on its supposition that Wells' suggestion of unfair treatment by the Supreme Court of Indiana is evidence of a lack of rehabilitation or lack of acknowledgment of wrongdoing. *fn4 Accordingly, I respectfully dissent.

ATTACHMENT

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 02-BG-1112

IN RE: BYRON C. WELLS, E29513

Filed October 8, 2002

An Applicant for Admission District of Columbia to the District of Columbia Bar. Court of Appeals

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF THE COMMITTEE ON ADMISSIONS

Byron C. Wells (the "Applicant") has applied to become a member of the Bar of the District of Columbia (the "Bar"). The Applicant passed the February 1996 bar examination, after having failed the July 1995 exam. However, the Applicant had been suspended from the practice of law by Indiana based upon charges relating to incidents between 1985 and 1987 in which he allegedly made unwanted sexual advances on several male clients. The application for admission to the District of Columbia Bar was held in abeyance pending review by the Supreme Court of Indiana of the Applicant's second request for reinstatement to that state's bar and pending a formal hearing on the application by the Committee on Admissions of this Court (the "Committee"). On May 6, 1998, the Committee conducted a formal hearing on the application pursuant to D.C. App. R. 46 (f). At the request of the Committee, Mr. Wells supplemented the record on July 15, 2002. A majority of the voting members of the Committee now finds that the Applicant has demonstrated his rehabilitation by clear and convincing evidence and, accordingly, that he possesses the requisite good moral character and general fitness to practice law. *fn5 Therefore, the Committee recommends that the Applicant be admitted to the District of Columbia Bar. A separate dissenting report by a minority of the Committee, is appended and has been filed simultaneously herewith.

Findings Of Fact

The Applicant is a former member of the Indiana Bar and a former judge of the Shelby County, Indiana Court, having served from 1977 through 1983. He was born in 1943. After serving as a reporter for the Indianapolis Star from 1965 until 1977, he received his Juris Doctor degree from Indiana University in 1977. On December 12, 1990, he was suspended from practice in Indiana for three years (In re Wells, 572 N.E.2d 1290 (Ind. 1991)) (R. 52-59), *fn6 and he was twice denied readmission by the Indiana Supreme Court.

The circumstances surrounding the Applicant's suspension from the Indiana Bar are as follows. After leaving the Shelby County Court bench in 1984, the Applicant opened a private law practice. According to the Applicant, he began making unwanted sexual advances toward certain male clients. The Applicant explained that he was overworked and his marriage, which included two children and four grandchildren, was suffering. The Applicant testified that he did not approach any male clients who were not of legal age. (R. 966-967). The Applicant explained that he approached a number of young males and would touch them to determine if they were interested in a sexual relationship. At the hearing before the Committee, the Applicant further testified that he "never used coercion, threats, intimidation [or] tried to talk anybody into anything. It was just a simple sexual pass . . . ." (R. 968; see also R. 56).

In 1987, the Applicant was arrested and charged with five counts of battery, the details of which were spelled out in a Verified Complaint for Disciplinary Action. (R. 26-27). At the hearing before the Committee, the Applicant stated that his sexual activity was revealed by a former client with whom he had a sexual relationship when that individual offered to testify against the Applicant in order to obtain a more lenient sentence following the former client's arrest for burglary. (R. 958). *fn7 In June 1988, the government dismissed four of the battery counts and filed an agreement to withhold prosecution with respect to the remaining misdemeanor battery count subject to the Applicant's participation in a diversion program. (R. 56). The Applicant completed the program and on September 6, 1988, the remaining charge was dismissed pursuant to the agreement. (Id.).

The Indiana Supreme Court Disciplinary Commission instituted disciplinary proceedings against the Applicant in 1989. (R. 26-27). In December 1990, the Indiana Supreme Court suspended the Applicant from practice pending further court order. (R. 52-53). *fn8 In July 1991, the Indiana Supreme Court suspended the Applicant from practice until December 12, 1993, at which time he would become eligible for reinstatement subject to satisfying the Court's rules for readmission. (R. 54-59).

The Applicant sought reinstatement in the Indiana Bar from the Indiana Supreme Court in 1994. (R. 60-63). A Hearing Officer, Sherrill William Colvin, conducted a lengthy proceeding that included the presentation of witnesses and other evidence regarding the Applicant's actions and his character and fitness for reinstatement in the Indiana Bar. (R. 65-81). During the reinstatement hearing, the Applicant testified that he understood his actions were wrong, expressed remorse for those actions and that he had been receiving counseling to address those actions. At the conclusion of the hearing, the Hearing Officer issued detailed Findings of Fact and Conclusions of Law and recommended that the Applicant be readmitted to the Bar. Id. On August 15, 1994, the four members of Indiana Supreme Court Disciplinary Commission accepted the Hearing Officer's recommendation and unanimously recommended that the Applicant be readmitted to the practice of law in Indiana. (R. 64).

On September 29, 1994, the Indiana Supreme Court denied reinstatement, despite both the Hearing Officer's recommendation of re-admission and the Indiana Supreme Court Disciplinary Commission's adoption of that recommendation after review of the record. (R. 82). In a one-page order, the Indiana Supreme Court stated that it was not convinced that Mr. Wells: has a proper understanding of and attitude towards [sic] the standards that are imposed upon members of the bar and that he will conduct himself in conformity with such standards. Id. *fn9

In 1996, while his application for admission to the Bar was pending in the District of Columbia, the Applicant again sought reinstatement in the Indiana Bar from the Indiana Supreme Court. In connection with those reinstatement proceedings, the Applicant submitted expert testimony by Dr. John C. Ehrmann, Jr., a clinical psychologist, who was selected by the Indiana Disciplinary Commission to evaluate the Applicant. (R. 637-640). *fn10 In June 1996, Dr. Ehrmann opined that:

Psychologically [the Applicant] has accomplished, in my opinion, the necessary steps to result in attitude change and self-acceptance. Some of the underlying dynamics which contributed to his earlier difficulties have long since been faced and dealt with. (R. at 639).

Dr. Ehrmann further stated that:

In an overall sense, Mr. Wells presents a treatment history and current profile which are consistent with an exceedingly positive prognosis regarding both his psychological functioning and his ability to interact with others in the future, even as a practicing professional, without posing any form of threat to them. I see him as an extremely low risk for any offense similar to that for which he was previously charged. In my extensive experience, there are few in [Applicant's] position who have invested the degree of effort and energy in addressing their problems and maintaining ongoing professional support. In addition, [Applicant] has involved himself in a voluntary position in an effort to help others with problems.

He has earned the respect of therapists and his pastor as well. These individuals appear to have been in a position to assess [Applicant's] progress both professionally and from a community standpoint. He is clearly endorsed very positively by these individuals. Id.

Janet Watson, a therapist of the Wellness Center of Holy Trinity Community Church in Memphis, Tennessee and also an AMSW and ALCSW, concurred in that conclusion. (R. at 641-643).

In July 1996, a second Hearing Officer, Julia Blackwell Gelinas, conducted another lengthy reinstatement proceeding with witnesses and documentary evidence. (R. at 774). Again, the Hearing Officer issued detailed Findings of Fact and Conclusions of Law. (R. 772-781). Again, the Hearing Officer recommended that the Applicant be reinstated in the Indiana Bar. Id. at 781. A second Indiana Supreme Court Disciplinary Commission comprised of eight individuals received and reviewed the voluminous record and unanimously recommended reinstatement. (R. at 771). As with the 1994 reinstatement proceedings, there was no dissent from the Disciplinary Commission's recommendation that the Applicant be reinstated in the Indiana Bar.

However, in December 1996, the Indiana Supreme Court again rejected the Disciplinary Commission's unanimous recommendation of reinstatement and denied the Applicant's Petition for Reinstatement. In a brief opinion, the Indiana Supreme Court concluded that: our concerns about the sincerity of the petitioner's remorse and the integrity of his attitude towards [sic] and understanding of the standards imposed upon members of the bar, coupled with the severity of his misconduct, outweigh the evidence he presented concerning his rehabilitation and present fitness to practice law. (R. 860-863).

This Committee conducted an investigation to determine whether the Applicant presently possesses good moral character and general fitness to practice law in the District of Columbia. See In re Manville, 494 A.2d 1289 (D.C. 1985) ("Manville I"). The Committee also had before it the voluminous record relating to the Indiana proceedings. The Committee held a formal ...


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