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In re Schwenke2/24/2004
Petitioner A. Paul Schwenke was disbarred in 1993 for professional misconduct. Schwenke appeals the district court's denial of his petition for readmission to the Utah State Bar ("Bar"), arguing that the district court and the Bar misapplied the Rules of Lawyer Discipline and Disability and the Rules Governing Admission to the Bar in considering his petition. We affirm.
BACKGROUND
**2 In 1993, Schwenke was disbarred for the misappropriation of funds in connection with his representation of a client. He was ordered to pay restitution in the amount of $97,250 as part of the disbarment order. See In re Schwenke, 865 P.2d 1350 (Utah 1993). On April 3, 2001, Schwenke submitted an application for readmission to the Bar with the required fees. By a letter dated May 29, 2001, the Bar informed Schwenke that the Character and Fitness Committee ("Committee") had denied his application to sit for the July 2001 bar examination based on various factors, including his prior theft of client funds, various pending civil actions and unsatisfied judgments against him, and multiple arrests for driving while intoxicated. Schwenke requested a formal hearing, which was held on June 26, 2001. The Committee again recommended that Schwenke's application be denied based on the factors just enumerated. The Committee issued its Findings of Fact, Conclusions of Law and Recommendation ("Recommendation") on August 10, 2001. This process was in accordance with the Rules Governing Admission to the Bar ("RGA"). See RGA 6-1, 6-3. [FN1]
FN1. All references to the RGA refer to the version of the rules in effect at the time of Schwenke's request for readmission. The RGA have subsequently been revised and renumbered. The investigative and hearing process has been modified and is now set forth at RGA 8.
**3 At the June hearing, Schwenke objected to the hearing process, claiming that his reinstatement was governed by rule 25 of the Rules of Lawyer Discipline and Disability ("RLDD"), which gives the district court, not the Bar, jurisdiction over the reinstatement process. See RLDD 25. Consequently, pursuant to rule 25, Schwenke delivered a Verified Petition for Reinstatement ("Petition") to the Utah Law and Justice Center on June 29, 2001. The Petition, intended for the Office of Professional Conduct ("OPC"), was given to the receptionist at the Law and Justice Center. The receptionist stated in her affidavit that the process server told her the papers were for "admissions." Accordingly, she forwarded the Petition to the Deputy General Counsel in Charge of Admissions. Upon discovering the Petition among the delivered papers, the Deputy General Counsel forwarded a copy to the OPC. The Petition finally arrived at the OPC on July 2, 2001.
**4 Schwenke also filed the Petition with the Fourth District Court [FN2] on July 3, 2001, along with a Petition for Extraordinary Writ asking the court to compel the Bar to allow him to sit for the July 2001 bar examination. The court denied Schwenke's request, stating that Schwenke must apply as a student applicant and receive the endorsement of the Character and Fitness Committee and, in the event of an unfavorable recommendation, encouraged Schwenke to appeal through the administrative process outlined in rule 14 of the RGA. Schwenke then filed an Emergency Petition to a Single Justice for an Extraordinary Writ in this court, which was also dismissed with an instruction to "proceed in the district court pursuant to the dictates of rule 25 of the Rules of Lawyer Discipline and Disability."
FN2. Venue was subsequently changed to the Third District Court.
*120 **5 The OPC filed its Memorandum in Opposition to the Verified Petition ("Opposition") on August 30, 2001, and the district court set the matter for a hearing
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