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In Re Kevin M. Sabo

August 16, 2012

IN RE KEVIN M. SABO, PETITIONER.


The opinion of the court was delivered by: Oberly, Associate Judge:

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 435676)

On Report and Recommendation of an Ad Hoc Hearing Committee of the Board on Professional Responsibility (BDN 15-11)

Argued May 16, 2012

Before OBERLY and BECKWITH, Associate Judges, and STEADMAN, Senior Judge.

Opinion for the court by Associate Judge OBERLY.

Dissenting statement by Senior Judge STEADMAN at page 33.

Petitioner Kevin Sabo, an attorney disbarred by this court on consent in 2003 following his felony conviction of attempted malicious wounding, seeks reinstatement as a member of the Bar of the District of Columbia. Upon receiving Bar Counsel's report not contesting Mr. Sabo's petition for reinstatement, we referred this matter to the Board on Professional Responsibility (the "Board") for its recommendation, which in turn referred the matter to a Hearing Committee for fact-finding. Following an evidentiary hearing and briefing, the Hearing Committee recommended reinstatement, a position Bar Counsel did not oppose. The Board disagreed and opposed Mr. Sabo's reinstatement. We agree with Bar Counsel and the Hearing Committee that Mr. Sabo has demonstrated his fitness to resume the practice of law. Accordingly, we grant his petition for reinstatement.

I.Facts and Procedural History

In 2000, a Virginia jury convicted Mr. Sabo of attempted malicious wounding, a felony, in violation of Va. Code §§ 18.2-26 and 18.2-51 (1994). The conviction was upheld by a divided panel of the Court of Appeals of Virginia. Sabo v. Commonwealth, 561 S.E.2d 761 (Va. 2002). Mr. Sabo served twelve months in prison and paid a fine of $1,628. Mr. Sabo conceded that the crime of which he was convicted involved an act of moral turpitude and, in 2003, consented to disbarrment. In re Sabo, 828 A.2d 168 (D.C. 2003) (per curiam).

The jury heard evidence that Mr. Sabo cut the brake lines of a vehicle owned by his former girlfriend, Heather Nicole Lawrence, days after she ended their relationship. When Ms. Lawrence next drove her vehicle, she lost control and hit a fence, a low brick wall, and a tree. No one sustained injury. From trial through this reinstatement proceeding, Mr. Sabo has maintained his innocence.*fn1

Yet Mr. Sabo freely acknowledges that his relationship with Ms. Lawrence, which spanned the period when he was separated from his first wife, was "destructive," "stormy," and "mutually abusive." He contends that his struggle with depression and other mental health challenges took him "down a path, down a spiraling tube" that brought about the events that led to his conviction and that it took him years of therapy to "understand truly how bad off [he] was at the time." *fn2 Following his release from prison in 2003 until the present time, Mr. Sabo has been receiving mental health treatment, including psychotherapy and medication management.

Since his release, Mr. Sabo has built a small but well-regarded home renovation business and has become very active in his church. However, his positive conduct is tempered by a regrettable incident at a Home Depot store in Fairfax, Virginia. On April 19, 2009, Mr. Sabo attempted to return a special-order item that arrived damaged. Upon being accused of damaging the item after receiving it, Mr. Sabo engaged in an argument with the store clerk. The altercation led to Mr. Sabo's receiving a refund for the item as well as for other items he had not yet purchased. He was later arrested on a charge of larceny by false pretense but ultimately placed on probation in a program geared toward first-time offenders. Upon satisfaction of the terms of his probation, including 75 hours of community service, the charge was dismissed.

Mr. Sabo filed a petition for reinstatement on January 4, 2011. Amendments to the District of Columbia Bar Rules governing the disbarrment and reinstatement of member attorneys became effective on August 1, 2008. Because this is the first uncontested petition for reinstatement under the amended rules in which this court has requested the recommendation of the Board, we outline the recent modifications to the petition process.

The amended rules provide a dual-track process for petitions for reinstatement: the contested and uncontested processes. Whether a petition is contested or uncontested is a decision made by Bar Counsel after the performance of a "suitable investigation."

D.C. Bar R. XI, § 16(e). When Bar Counsel contests a petition, the procedure under the amended rules remains materially the same as before: a hearing is convened after which the Hearing Committee submits a report of its findings and recommendations to this court for a final disposition. Id. at § 16(d).*fn3

In contrast, uncontested petitions bypass the Hearing Committee. Bar Counsel must file a report with this court "stating why Bar Counsel is satisfied that the attorney meets the criteria for reinstatement." D.C. Bar R. XI, § 16(e). Thereafter, this court may grant the petition, deny it, or request a recommendation from the Board before deciding whether to grant or deny the petition. Id.

Mr. Sabo's petition came to this court uncontested by Bar Counsel and it remains so, although Bar Counsel did recommend that petitioner be required to continue mental health treatment "at a frequency and manner consistent with the mental health professional's recommendations, for five years after his reinstatement." Confronting lingering questions regarding petitioner's fitness for reinstatement arising out of the 2009 Home Depot incident, a motions panel of this court held Mr. Sabo's petition in abeyance and referred the matter to the Board for its recommendation. The motions panel focused the Board's review on three questions: (1) whether, in light of Mr. Sabo's re-arrest, he had sufficiently addressed the mental health issues that led to the circumstances that resulted in disbarrment; (2) to what extent the five-year monitoring condition of reinstatement suggested by Bar Counsel would sufficiently protect the public, and the rationale for a five-year period; and (3) whether Mr. Sabo had sufficiently met his burden to prove fitness for reinstatement through satisfaction of the factors set out in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985). Mr. Sabo requested an evidentiary hearing to present character and mental health testimony, as well as testimony going to the Roundtree factors generally, to assist the Board in responding to the court's questions. Bar Counsel consented to petitioner's request, and the Board accordingly referred the matter to a Hearing Committee for a fact-finding hearing and to make a recommendation on reinstatement.

The Hearing Committee held an evidentiary hearing on July 21, 2011, at which it heard live testimony and arguments, followed by written submissions from petitioner and Bar Counsel. Mr. Sabo's witnesses provided character evidence on his behalf, as well as evidence of his mental health treatment. Bar Counsel called a psychiatrist it had hired to evaluate Mr. Sabo's fitness to resume the practice of law. All witnesses, including the psychiatrist called by Bar Counsel, discussed the extent to which Mr. Sabo had worked to overcome his past difficulties and turn his life around. On September 20, 2011, the Hearing Committee issued a lengthy report in which it made extensive findings of fact and recommended Mr. Sabo's reinstatement, adopting the condition proposed by Bar Counsel that Mr. Sabo continue his mental health treatment for five years after his reinstatement. The Board, however, issued a report on November 9, 2011, recommending that the petition be denied. Although the Board "reviewed and adopt[ed] the Findings of Fact made by the Committee as supported by substantial evidence in the record," it took issue with Mr. Sabo's refusal to admit culpability for the attempted malicious wounding, and it was bothered by the absence of testimony regarding his claim of innocence. The Board also was concerned about the Home Depot incident, which it viewed as an indicator of Mr. Sabo's difficulties in dealing with stress, and concluded that his history of psychotherapy was "too intermittent and short-lived" to support reinstatement. One Board member issued a concurring opinion, agreeing with the majority that Mr. Sabo's petition should be denied but expressing the view that the Board had made too much both of Mr. Sabo's mental illness and the Home Depot incident. Nevertheless, he agreed with the denial of the petition on the grounds that Mr. Sabo had failed to demonstrate a reasonable basis for maintaining his claim of innocence of the attempted malicious wounding charge.

Mr. Sabo filed exceptions to the Board's report; Bar Counsel filed a statement with this court stating that it "did not oppose Petitioner's reinstatement" and that it "support[ed] the Hearing Committee's Report and Recommendation also recommending reinstatement." We are now called upon to determine whether Mr. Sabo is fit for readmission to the Bar. We hold that he is and grant his reinstatement petition.

II.Analysis

In reinstatement cases the burden of proof is on the petitioner to "demonstrate by clear and convincing evidence that he or she is fit to resume the practice of law." In re Robinson, 705 A.2d 687, 689 (D.C. 1998) (Robinson I) (internal quotation marks omitted); D.C. Bar R. XI, § 16(d)(1).*fn4 To do so, the petitioner must establish that he or she has the "moral qualifications, competency, and learning in law required for readmission" and that his or her reinstatement would "not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest." D.C. Bar R. XI, § 16(d)(1)(a)-(b). In interpreting these criteria, we apply the five factors articulated in Roundtree, 503 A.2d at 1217: "(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law."

Although we place "great weight" on the recommendations of the Board and Hearing Committee, In re Bettis, 644 A.2d 1023, 1027 (D.C. 1994), this court has the ultimate authority to decide whether to grant a petition for reinstatement. Id. (citing In re Harrison, 511 A.2d 16 (D.C. 1986), and Roundtree). Indeed, the "recommendation of the BPR is only a recommendation, and . . . the determination of fitness to resume the practice of law rests entirely with this court." Roundtree, 503 A.2d at 1217. By contrast, the Board is obliged to accept the findings of fact made by the Hearing Committee, which include credibility determinations, if they are "supported by substantial evidence in the record, viewed as a whole." In re Micheel, 610 A.2d 231, 234 (D.C. 1992). Such deference is appropriate because the Hearing Committee is "the only decision-maker which had the opportunity to observe the witnesses and assess their demeanor." In re Ray, 675 A.2d 1381, 1387 (D.C. 1996).

A.The Nature and Circumstances of the Misconduct for Which the Petitioner Was Disciplined

The seriousness of the attempted malicious wounding conviction underlying Mr. Sabo's disbarrment, which we described at the outset, cannot be overstated. Mr. Sabo consented to disbarrment nunc pro tunc and conceded that his conviction involved an act of moral turpitude. Still, his conviction is not necessarily a permanent bar to reinstatement. See In re McBride, 602 A.2d 626, 641 (D.C. 1992) (en banc) (concluding that attorneys "disbarred upon conviction of a crime involving moral turpitude shall no longer be deemed disbarred for life . . . and that such attorneys, like all others who have been disbarred, shall be entitled to petition for reinstatement . . . after five years of disbarrment"). As the Hearing Committee noted, quoting In re Borders, 665 A.2d 1381, 1382 (D.C. 1995), Mr. Sabo's conviction "did not involve or pertain to the practice of law nor go ‗to the heart of the integrity of the judicial system.'" In Borders, petitioner's underlying convictions, arising out of solicitation of bribes from criminal defendants in exchange for lenient treatment from a federal judge, caused us to give heightened scrutiny to the other Roundtree factors. Borders, 665 A.2d at 1382. The conviction underlying Mr. Sabo's disbarrment, although undeniably disturbing, is quite different.

Whether certain acts of misconduct might be so heinous as to warrant an automatic, or per se, rule of disbarrment without possibility of reinstatement is a question we have been urged to address in the past but we have declined to do so. See, e.g., Borders, 665 A.2d at 1382 (declining to decide "whether the gravity of the original crime(s) may trump every other consideration bearing on reinstatement" and constitute a permanent bar to reinstatement, but denying petition for reinstatement for failure to satisfy the Roundtree factors). Here, too, we are not prepared to rule that the misconduct underlying petitioner's conviction for attempted malicious wounding is a permanent bar to his reinstatement. The Board does not argue for such a result in this case; rather, it contends only that petitioner must admit culpability or explain his grounds for maintaining his innocence. We leave for another day whether such a rule might ever be appropriate but, in light of petitioner's extensive explanation of the circumstances that led to the criminal charge against him,*fn5 we conclude that the "nature and circumstances of the misconduct" for which petitioner was disciplined have been adequately explained and do not defeat his petition for reinstatement. Roundtree, 503 A.2d at 1217 (emphasis added). ...

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