In the Matter of Distefano (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 668
Facts
Originating area of law: Attorney reinstatement following prior discipline. Petitioner was disbarred in 1975 after federal convictions for filing false tax refund claims; post-disbarment he was convicted in state court (1976) of grand theft and forgery for embezzling funds from his employer. After release (1979), he worked as a law clerk and in a forensic medical-report business. A hearing judge found clear and convincing rehabilitation and present good moral character and recommended reinstatement.
On review, the State Bar argued that petitioner’s failure to make full restitution to his former employer barred a finding of rehabilitation. The Review Department addressed: (1) whether passage of the Professional Responsibility Examination (PRE) is a prerequisite to reinstatement; (2) how restitution figures into rehabilitation; and (3) the requisite burden and scope of proof on moral character and rehabilitation.
Charges and Proceedings
This is a reinstatement proceeding, not a new disciplinary prosecution. The Review Department held that petitioners bear a heavy burden to prove rehabilitation and present moral qualifications; evidence must overcome the prior adverse judgment and be viewed in light of the misconduct that led to disbarment. The court also clarified that under court rules, passage of the PRE must precede a recommendation of reinstatement and that restitution, while not legally mandatory, may be a moral obligation relevant to rehabilitation; absence of restitution requires other “quite convincing” evidence of recognition of fault, contrition, and reform.
Sanctions Table
| Issue | Defense / Explanation | Mitigation | Aggravation / Concerns | Outcome |
|---|---|---|---|---|
| Prerequisites to reinstatement — PRE; learning/ability; rehab; moral character | Hearing judge recommended reinstatement; record lacked proof of PRE passage. | Years of lawful employment; psychiatric evaluation supporting stability; supportive testimonials. | PRE not shown passed at hearing conclusion; omissions on petition to be clarified. | Remanded to determine PRE passage and to take additional evidence on rehabilitation and moral character. |
| Restitution to former employer — moral duty vs. legal obligation | Petitioner believed prison satisfied his “debt” and did not complete repayment after release. | Some payments made; federal restitution satisfied; evidence of employment and community support. | Failure to make full restitution despite apparent ability; attitude toward restitution questioned. | Restitution not strictly mandatory, but lack of it requires other “quite convincing” evidence of rehabilitation. |
| Burden and breadth of proof — rehabilitation & moral character | Testimonials from attorneys/employers offered. | Lawful conduct since release; psychiatric treatment history; lifestyle stability. | Narrow witness spectrum; need broader community observations and concrete amends. | Additional proceedings ordered to expand the record before any reinstatement recommendation. |
Result and Significance
The Review Department remanded to the Hearing Department for (1) findings on whether petitioner has passed the Professional Responsibility Examination (a condition precedent to a reinstatement recommendation), and (2) further proceedings on rehabilitation and present moral qualifications. The court reaffirmed that restitution may be a moral obligation even absent a legal one; if unpaid, the petitioner must present other compelling evidence of contrition, reform, and community trust. It also encouraged a broader spectrum of witnesses and concrete acts demonstrating rehabilitation.
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Citation: In the Matter of Distefano (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 668.