IN THE MATTER OF PAUL WAITZ.

ABRAMS, J. Bar counsel appeals from the judgment of the single justice allowing Paul Waitz's fifth petition for reinstatement

Page 299

to the practice of law from an indefinite suspension entered on October 2, 1987, retroactive to September 8, 1983. The Board of Bar Overseers (board) recommended that the fifth petition for reinstatement be denied. The single justice allowed the petition and denied bar counsel's motion for a stay of execution. [Note 1] We reverse and order the reinstatement of Waitz's indefinite suspension from the office of attorney at law. [Note 2]

1. The facts. The facts are as follows. Paul Waitz was admitted to the practice of law in 1959. In 1983, he was convicted of usury. See G. L. c. 271, Section 49 (1992 ed.). Based on the conviction and the underlying facts, bar counsel filed a petition for discipline. The board referred the matter to a hearing panel.

The panel determined that Waitz made a usurious loan for $36,000 to Paul and Leonide Lacet, who had been his clients for several years. The Lacets' native language was not English. On behalf of Paul Lacet, Waitz negotiated the purchase of the gasoline station which Lacet operated under lease from Amoco. Lacet then asked Waitz to help him obtain the necessary funding for the purchase. Waitz told Lacet that he could arrange a loan "through a [Diane] Gewirtz of New

Page 300

York." Waitz drafted a note and mortgages to Gewirtz which the Lacets signed. [Note 3]

Diane Gewirtz was Waitz's wife. Waitz did not disclose this fact to the Lacets. Except for this loan, Gewirtz had used the name Waitz since 1956, when she married Waitz. Waitz used funds which he jointly owned with Gewirtz to make the loan. The panel concluded that Waitz's conduct, independent of his conviction of a felony, constituted a conflict of interest in violation of Supreme Judicial Court Rule 3:07, Canon 5, DR 5-101 and DR 5-104, as appearing in 382 Mass. 779 & 781 (1981). The panel recommended that he be suspended from practice for a period of one year. The board adopted the report of the hearing panel but modified the recommendation for discipline, recommending a suspension for a period of two and one-half years. On November 21, 1984, the single justice imposed a suspension of eighteen months.

On May 9, 1985, Waitz filed his first petition for reinstatement. The board referred this petition to a panel for hearing and recommendation. The board recommended that Waitz's petition for reinstatement be denied based on the panel's finding that Waitz had "in the period since his suspension, signed another person's name without authorization in order to obtain credit cards issued in another's name, run up bills in the name of that person and not held her harmless, [Note 4] made numerous false statements on several occasions in order to obtain credit, [Note 5] attempted to deceive, [Note 6] given a

Page 301

check which was not backed by sufficient funds in order to obtain money from another, [Note 7] and held himself out to the public as practicing law." [Note 8] The single justice denied Waitz's first petition for reinstatement on July 30, 1986.

Less than six months later, Waitz filed a second petition for reinstatement. Bar counsel then filed a new petition for discipline based on the evidence and facts adduced at the hearing on Waitz's first petition for reinstatement. The board adopted the facts established during the hearing on Waitz's first petition for reinstatement and determined that Waitz was guilty of violations of the disciplinary rules in addition to those which had led to his first suspension. The board concluded that Waitz's conduct constituted dishonesty, fraud, deceit, and misrepresentation in violation of Supreme Judicial Court Rule 3:07, Canon 1, DR 1-102 (A) (4), as appearing in 382 Mass. 769 -770 (1981), and that it adversely reflected on his fitness to practice law in violation of Supreme Judicial Court Rule 3:07, Canon 1, DR 1-102 (A) (6). Considering his history of prior discipline, which included two instances of private discipline in addition to the suspension

Page 302

imposed in 1984, [Note 9] the board recommended that Waitz be indefinitely suspended. On October 2, 1987, the single justice accepted the board's recommendation that Waitz's petition for reinstatement be denied, and ordered that an indefinite suspension be imposed on Waitz retroactive to September 8, 1983, the date of Waitz's initial temporary suspension.

Waitz filed his third petition for reinstatement eight months later on July 6, 1988. At the ensuing hearing, the panel determined that: Waitz had failed to obtain significant gainful employment; [Note 10] he failed to make any payment on a $2,000 malpractice claim; he failed to make $200 per month payments on his Chapter 13 wage earner's plan; he failed to pay $2,600 owed to Keizer and City Bank as a result of his use of credit cards issued in Keizer's name; and he owed the Internal Revenue Service $20,000. The panel also noted that two stolen automobile engines were found at the house in Sharon where Waitz had lived for many years, one of them in an automobile which he formerly owned. The panel did not believe Waitz's explanation that he gave the house to his son as trustee based on Waitz's testimony that he was responsible for the mortgage payments, the utilities, and other household expenses. The panel's factual determinations were adopted by the full board. The board recommended that the petition be denied. The single justice denied the petition for reinstatement.

In 1990, Waitz filed his fourth petition for reinstatement. For a fourth time, the panel found that Waitz was not qualified for reinstatement. The panel mentioned three bases for its dissatisfaction with Waitz's demonstration of his moral character: (1) he was "something less than candid" with the panel; [Note 11] (2) he similarly was lacking in candor with the

Page 303

Bankruptcy Court; [Note 12] and (3) he was unconcerned about his obligation to pay Federal taxes. [Note 13] These facts, combined with the panel's conclusion that Waitz had not "prepared himself to be now able to exercise that minimum degree of lawyering skills that is required of all lawyers," resulted in a recommendation to the board to deny the petition for reinstatement. The full board adopted the panel's factual findings and recommended that reinstatement be denied. The single justice denied reinstatement on July 2, 1991.

Waitz filed his fifth petition for reinstatement on September 4, 1991, only two months after his fourth petition had been denied. As with his four previous petitions for reinstatement, Waitz's fifth petition was referred to a panel for hearing and recommendation. And, like the four prior panels, the fifth panel unanimously recommended denial of the petition. The full board adopted the panel's report and recommended that the petition for reinstatement be denied. On December 16, 1992, after hearing, the single justice allowed Waitz's petition for reinstatement.

2. The applicable standard for evaluating petitions for reinstatement. Supreme Judicial Court Rule 4:01, Section 18, as amended, 394 Mass. 1106 (1985), governs reinstatement.

Page 304

Section 18 (5) provides that, on a petition for reinstatement, "the respondent-attorney . . . shall have the burden of demonstrating that he has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest." To sustain his or her burden of proof under this rule, an attorney seeking reinstatement after suspension or disbarment must affirmatively demonstrate that (1) he or she has the moral character required for admission to practice law in this Commonwealth; (2) he or she has the competency and learning in the law required for admission; and (3) his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest.

A. Moral qualifications. A disciplined attorney who seeks reinstatement is asking to be "`held out by the Commonwealth,' acting by its judicial department `as one worthy of trust and confidence in matters pertaining to the law.'" Matter of Keenan, 313 Mass. 186, 217 (1943), quoting Bergeron, petitioner, 220 Mass. 472, 476 (1915). Disbarment "is conclusive evidence of his lack of moral character at the time of his removal from office. And it continues to be evidence against him with respect to lack of moral character at later times." Matter of Pool, 401 Mass. 460, 464 (1988), quoting Matter of Keenan, supra at 219. The attorney, therefore, has the burden "to establish affirmatively that since his disbarment he has become `a person proper to be held out by the court to the public as trustworthy.'" Matter of Pool, supra at 464, quoting Matter of Keenan, supra at 219, and Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897). At Waitz's fifth reinstatement hearing, for the first time there was no evidence of new misconduct by Waitz. However, the facts established in the prior proceedings showed that, throughout the first eight years of his suspension, Waitz continued to engage in conduct which did not display moral character.

Page 305

Moreover, the panel which considered Waitz's fifth petition for reinstatement determined that Waitz was less than candid with the panel with respect to Waitz's status as a tax delinquent. The panel concluded, based on Waitz's testimony, that Waitz had not paid his tax debt. Papers submitted by Waitz's counsel after the conclusion of the fifth hearing indicated that the Internal Revenue Service no longer considered Waitz to be a tax delinquent. The panel acknowledged this fact but stated that "[i]t is clear from Mr. Waitz's testimony that he has not paid the $200,000 in overdue taxes and the reason why the Internal Revenue Service no longer carries Mr. Waitz as delinquent is frankly left to speculation by the [p]anel. Mr. Waitz testified at the hearing that he believed that his bankruptcy petition affected his tax status, but has not presented any evidence to support that proposition. Mr. Waitz's tax status is thus surrounded by a mist and fog which it was Mr. Waitz's obligation, as the petitioner, to confront." The panel observed that "the fact that [Waitz] would come before us without having determined one way or the other whether or not the taxes are owed again demonstrates a lack of understanding of his burden on a Petition for Reinstatement." The panel concluded that "Waitz's failure to promptly and forthrightly address the issue of the taxes raises serious questions about his integrity and moral character."

Reform is "a state of mind" that must be manifested by some external evidence. See Matter of Allen, 400 Mass. 417, 423-425 (1987) (years of counseling and teaching inmates and assistance to the Indian immigrant community); Matter of Hiss, 368 Mass. 447, 462-466 (1975) (twenty-three years of exemplary behavior). At Waitz's fifth reinstatement hearing, the sole evidence of his civic, charitable, and social activities consisted of his repetition of evidence already heard at prior hearings, particularly the third petition for reinstatement. The panel observed that Waitz's failure to convince four previous hearing panels that he was a proper candidate for reinstatement "require[d] that Mr. Waitz demonstrate that there has been a substantial change in the facts that

Page 306

would justify reinstatement." "[P]assage of time alone is insufficient to warrant reinstatement." Matter of Hiss, supra at 460 n.19. The board's conclusion that Waitz failed to sustain his burden of proving that he has the moral character required for admission to practice law was supported by the evidence.

B. Competency and learning in law. Rule 4:01, Section 18 (5), requires an attorney seeking reinstatement to demonstrate that he or she has the "competency and learning in the law . . . required for admission to practice law in this Commonwealth." With respect to Waitz's fifth petition for reinstatement, the board determined that Waitz's efforts to stay abreast have been "scant and unconvincing." [Note 14] He attended a Massachusetts Continuing Legal Education practical skills course in January, 1989, and he attended three additional courses at a later time. In addition, he spent "two to three hours" per week "studying the law or reading publications" in the office of a lawyer friend. See Matter of Masuck, 3 Mass. Att'y Discipline Rep. 135 (1982) (attorney who had been under suspension for six years, three months, required to pass bar examination before reinstatement); Matter of Hetnick, S.J.C. No. 76-11BD (June 9, 1992) (essay portion of bar examination required of attorney under suspension for sixteen years). The board's conclusion that Waitz failed to sustain his burden of proving that he has the competency and learning in law required for admission to practice law in this Commonwealth was supported by the evidence.

C. Detriment to the integrity and standing of the bar, the administration of justice, or to the public interest. Rule 4:01, Section 18 (5), requires an attorney seeking reinstatement to demonstrate that "his [or her] resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest." In evaluating petitions for reinstatement, "the true test must always be the public welfare." Matter of

Page 307

Keenan, 314 Mass. 544, 547 (1943), quoted with approval in Matter of Allen, supra at 421, and Matter of Gordon, 385 Mass. 48, 54 (1982). The impact of a reinstatement on public confidence in the bar and in the administration of justice is a substantial concern.

With respect to Waitz's fifth petition for reinstatement, the board concluded, based on the facts established at the reinstatement hearings, that reinstatement of Waitz "would be detrimental to the integrity and standing of the bar, the administration of justice, [and] to the public interest." We agree. The established facts show that, during his suspension, Waitz acted inappropriately and in a manner inconsistent with the integrity required of attorneys.

The panel which considered Waitz's fifth petition for reinstatement recommended that we prohibit Waitz from filing a petition for reinstatement for two years. In his oral argument, bar counsel requested that we follow that recommendation. We conclude that Waitz should not be allowed to file a petition for reinstatement prior to three years from the date of this opinion. The case is remanded to the Supreme Judicial Court for Suffolk County where a judgment shall be entered in accordance with the order of September 15, 1993, and by adding that Waitz may not file a petition for reinstatement for three years from the date of this opinion.

So ordered.