Friday, November 14, 2008

Duty Of Candor

The Vermont Supreme Court denied the application for bar admission of an applicant with a history of criminal and financial responsibility issues. Of particular significance to the court were issues relating to the adequacy of the applicant disclosures concerning these problems in law school applications and in the bar's character and fitness process. The applicant had been denied admission in New York.

The applicant's testimony on the issue of the law school applications (the applicant had a j.d. and a master's degree)was summarized:

Regarding his lack of candor on his law school applications, he maintained that he never had any intent to be deceitful and explained that once he became aware that he had a duty to disclose items, he did so immediately.  Applicant explained that he thought his juvenile record was sealed and not subject to disclosure on his J.D. application.  Further, he asserted that he disclosed his convictions after he learned that he was required to provide the law school with that information.  Upon questioning, applicant was unclear about whether he had forgotten about his juvenile convictions or simply thought that he was not required to disclose them.  He also did not provide an explanation for why he made a late disclosure of one juvenile infraction, but not of the others.  Applicant admitted that he realized he was required to disclose a conditional discharge and therefore disclosed his harassment conviction, but maintained that the bad-check conviction was not required to be disclosed because he remembered that the matter was dismissed, even though the paperwork revealed otherwise. 

 Concerning his LL.M. application, applicant testified that an employee at American advised him that he was not required to disclose his juvenile convictions.  He also opined that he was not required to reveal his administrative probation at Cooley because the question asked only about academic and conduct probation.  Applicant sought to admit a recent letter from a dean at the law school, indicating that the school would not have required disclosure of administrative probation or juvenile convictions, but the Commissioner excluded the letter as hearsay.

The court emphasized the duty to full candor:


Overall, while some of applicant’s answers may have, in some quibbling sense, been correct, they were certainly not complete, nor were they in keeping with his affirmation at the end of the application that he had answered all questions “fully and frankly.”  What applicant fails to comprehend is that in answering questions about his past, the best response is the one that most fully answers the question.  Evasive or incomplete answers, although arguably not incorrect, do not fulfill an applicant’s responsibility to be truthful and honest.  Nor do such answers give us confidence in the applicant’s ability to be honest and trustworthy in the practice of law. See V.R.A.B. § 11(b)(1) (stating that process of screening applicants for good moral character is to exclude individuals who have demonstrated “dishonesty or lack of trustworthiness in carrying out responsibilities”). Each of these instances of nondisclosure individually might not compel us to conclude that applicant lacks good moral character.  In the aggregate, however, applicant’s repeated nondisclosure of his past, and his continuing insistence that he has acted properly, do not give us confidence that applicant understands the importance of honesty or the gravity of his behavior. 

Whatever a court's reaction to pre- bar application issues in terms of the evaluation of the applicant's character, a lack of candor and acceptance of responsibility in the admission process is invariably fatal to the application. I am a bit troubled by the rejection of evidence from a law school regarding its interpretation of disclosure obligations on its admission application. (Mike Frisch)

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The issue of whether and when a criminal action which has been legally “erased” must be disclosed became relevant to a case I am working on. Connecticut’s questionnaire is unclear as to whether these prior events must be disclosed. When I attempted to clarify this with the Bar Examining Committee, they were not able to give me an answer and had to defer (why the committee would need to defer is an even more interesting question). Eventually I was told that erased criminal actions do not need to be disclosed which appears to be contrary to the position of Vermont. In fact, Connecticut’s erasure statute is quite strong.

Nonetheless, even though Connecticut deems its actions erased, take a look at the federal Questionnaire for National Security Positions, SF-86, which requires that an applicant report police record information “regardless of whether the record has been ‘sealed’ or otherwise stricken from the court record.” This mandate is backed up with a warning that “knowingly falsifying or concealing a material fact is a felony which may result in fines up to $10,000 and/or 5 years imprisonment”.

So although the Vermont court makes the question of what much be disclosed sound obvious, it isn’t.


Posted by: FixedWing | Nov 14, 2008 10:30:24 AM

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