Overview

In In the Matter of Kirwan, the Review Department addressed the standards governing reinstatement after resignation with disciplinary charges pending, focusing on the distinction between rehabilitation and present moral qualifications. The case is a leading authority on how post-petition misconduct can defeat reinstatement even when rehabilitation from prior wrongdoing has been established.

Facts

Kevin P. Kirwan was admitted to practice in 1964 and resigned from the State Bar in 1988 while disciplinary charges were pending. He later petitioned for reinstatement in 1991.

In an earlier appeal, the Review Department held that Kirwan had demonstrated rehabilitation from the misconduct that led to his resignation but remanded the matter to determine whether he had recovered from alcoholism and depression.

During proceedings on remand, the State Bar introduced evidence of Kirwan’s involvement in a failed casino development project in Oxnard, California. Evidence showed that he presented himself as an expert in gaming law, discussed legal requirements for casino development, and allowed city officials to believe he was acting as an attorney despite not being authorized to practice law.

Kirwan also failed to disclose his past criminal involvement in gaming activities and demonstrated questionable judgment by associating with a project participant who had a felony conviction disqualifying him from casino ownership.

Charges / Issues

• Whether petitioner proved present moral qualifications for reinstatement
• Effect of post-petition conduct on reinstatement eligibility
• Unauthorized practice of law
• Scope of issues on remand

Key Legal Principles

1. Rehabilitation vs. Present Moral Fitness

Rehabilitation from prior misconduct does not automatically establish present moral qualifications. A petitioner must separately prove current fitness by clear and convincing evidence.

2. Ongoing Nature of Moral Character Inquiry

Present moral qualifications remain subject to evaluation until reinstatement becomes final. The State Bar may consider any conduct bearing on honesty, candor, respect for law, and fiduciary responsibility regardless of when it occurred.

3. Burden of Proof in Reinstatement

The petitioner bears the burden of proving rehabilitation and present moral fitness by clear and convincing evidence. The State Bar need only introduce enough adverse evidence to reduce the persuasiveness of the petitioner’s showing.

4. Unauthorized Practice as Moral Character Evidence

Even implied representations that one is entitled to practice law can constitute unauthorized practice and demonstrate lack of honesty and candor.

5. Scope of Issues on Remand

On remand, the hearing department may consider new evidence relevant to present moral fitness even if earlier findings established rehabilitation.

Mitigation

• Evidence of recovery from alcoholism and depression
• Prior finding of rehabilitation from original misconduct

Aggravation

• Post-petition misconduct
• Implied holding out as an attorney
• Lack of candor and poor judgment

Key Holding

Even where an attorney proves rehabilitation from past misconduct, reinstatement may be denied if subsequent conduct demonstrates the attorney lacks present moral qualifications for practice.

Outcome

The Review Department affirmed the denial of Kirwan’s petition for reinstatement.

Sanctions Table