Sunday, February 11, 2018
The Vermont Supreme Court affirmed the denial of a bar applicant's admission on character and fitness grounds.
Applicant achieved a passing score on the February 2016 Vermont bar examination. His application was forwarded to the Character and Fitness Committee, which assigned one of its members to investigate applicant’s moral character and fitness. On May 9, 2016, the member reported to the Committee that he was unable to certify applicant’s good moral character and fitness. The member noted that applicant offered confusing explanations for his disbarment in Washington State and his conviction for alteration of a court document. The member was also concerned that the Washington disbarment notice stated that applicant had repeatedly violated court orders and filed meritless pleadings. A three-member panel of the Committee held a hearing on the matter on October 20, 2016. Applicant attended the hearing and was represented by counsel. In a written decision issued on January 30, 2017, the Committee declined to certify applicant’s good moral character and fitness.
The applicant has practiced little in the 32 years since graduating law school (and deserves some kudos for passing a bar exam over 30 years after graduation)
Applicant received a juris doctor degree from the Cleveland Marshall College of Law in 1985. After law school, he traveled and helped start a restaurant in New Hampshire. He worked as a clerk in New Mexico and unsuccessfully took the New Mexico bar examination in 1986. He then returned to the restaurant business. In 1991, he passed the Washington State bar examination and was admitted to the Washington bar. He did not practice law in Washington, instead remaining in the restaurant business. In 1994, he returned to Cleveland, Ohio to care for his parents. He left Ohio in 2002, moving first to New Hampshire and then settling in Vermont. He has lived in Vermont since 2003 and has supported himself in real estate development. He testified that he never “really” practiced law, although when he lived in Washington he helped a local attorney draft some documents.
The character issues involved criminal matters and litigation against his brother that led to his disbarment in Washington State
In considering applicant’s moral character, the Committee focused primarily on two clusters of concern: one involving applicant’s Ohio conviction for altering a court document and the other relating to his subsequent disbarment in Washington. The Committee also expressed concerns about applicant’s capacity to practice law based upon his conduct during the proceedings below.
With respect to the Ohio conviction and the Washington disbarment, the Committee noted that applicant’s response to the Committee’s concerns was to deny any wrongdoing and to attack the legitimacy of the underlying proceedings and institutions. Regarding the conviction, the Committee found that applicant was unable to give a clear and coherent explanation of the nature of the charge and underlying conduct, and therefore had failed to meet his burden of proving his good moral character in light of the undisputed fact of the conviction. Similarly, the only document the Committee had before it concerning applicant’s Washington disbarment was the WSBA disciplinary notice, which recited a litany of misconduct including frivolous lawsuits and pleadings and disregard of court orders. The few transcript pages provided by applicant from the WSBA hearing did not show that his disbarment was unwarranted. The Committee found that the other documents provided to it by applicant did not concern the merits of the conviction and disbarment, and did not demonstrate applicant’s good moral character or fitness.
The Committee further determined that applicant’s conduct throughout the character and fitness proceedings showed that he was unfit to practice law. Although there was no evidence that applicant was suffering from a health condition, the Committee found that he was unable to focus on the issues of concern to the tribunal or to provide reliable, relevant evidence. He also appeared not to fully understand his own legal situation, as evidenced by his inability to explain the charge to which he pleaded guilty. He did not provide information that was obviously important to the Committee, such as the records of the disbarment proceeding in Washington State that he promised to provide. The Committee concluded based on this conduct that applicant was presently unfit to practice law. Applicant timely appealed to this Court.
The appeal failed
Applicant’s shifting and evasive responses relating to his 2008 conviction for alteration of a court document suggest a troubling lack of candor. Applicant argues that this conviction, which was based on events alleged to have occurred in 2003, is too remote in time to be relevant to his present character. Applicant provided little information relating to this conviction, and the information he did provide was incomplete. He did not provide the correct case number associated with the conviction on his bar application. He offered vague and conflicting explanations about the charge and plea. He claimed in his appellate brief that he never committed a crime involving alteration of a court document, and argued that he was the victim of a corrupt judicial system and retaliation by a judge. He has focused much of his energy on appeal to highlighting his belief that myriad actors in the Cuyahoga County political and judicial system are generally corrupt. Yet the record shows that applicant apparently pleaded guilty to a criminal charge involving alteration of a court document. While the conviction by itself would not necessarily prevent a determination of current good moral character, applicant’s evasive and incomplete answers to questions regarding the conviction call into question his present truthfulness...
Applicant’s unclear and incomplete explanation of his Washington disbarment gives us further reason for concern. Applicant claimed that he was wrongfully disbarred in retaliation for filing a complaint against another attorney. He believed that he was the victim of a vendetta by the Washington trusts and estates bar. He claimed that he presented exculpatory evidence to the WSBA, which they “stole” from him, and that the Washington Supreme Court refused to hear his appeal. However, he failed to provide critical information that would allow the Committee to assess the validity of these claims, such as his complaint to the WSBA, the formal disciplinary complaint against him, the WSBA decision, or any Washington Supreme Court decision. Applicant argued that the transcript of the WSBA hearing would corroborate his version of events, stating, “[e]verything that occurred there is in the transcript. I have a disk.” He promised to provide the transcript to the Committee, but then did not do so, making it impossible for the Committee to assess the credibility of his description of the hearing. He did not even proffer the disk. The few transcript pages he did provide do not demonstrate that the WSBA proceeding was fundamentally flawed or that the WSBA’s decision lacked evidentiary support.
The court says Dayenu but goes on the note the behavior as a litigant here
Applicant’s inability to present a coherent case is also apparent from his conduct on appeal. Applicant wisely retained counsel to present oral argument on his behalf. However, following the September 12, 2017 oral argument, he asked his counsel to withdraw, and he proceeded to barrage the Court with a series of post-argument motions on September 13, September 18, September 20, September 22, October 16, and October 26. These serial motions, which are largely repetitious of applicant’s briefs and pre-argument motions, contained multiple assertions by applicant directed to “correcting the fact record,” repeated assertions that the Ohio situation was a result of corruption in the Ohio legal system, an explanation that the Ohio finding that he was a “vexatious litigator” had been purged, and objections to consideration of the various publicly available court decisions cited by the State. Applicant’s claims throughout these motions are generally unsupported by citations to the record, and the only additional documentation he sought to add to the record involved generalized corruption in Cuyahoga County, Ohio political and judicial systems—information that has little to no bearing on the issues in this appeal. Our determination does not rest on this fact, but we note that the Committee’s recommendation that applicant clerk for an attorney if he plans to reapply for admission, in the hope that that will help him present a coherent case for his own admission in the future, was a reasonable suggestion.
By permitting applicant to take the examination, applicant claims, the Board of Bar Examiners effectively conceded his good moral character and fitness and is now estopped from denying it. We conclude that applicant has not made the particular showing required to support estoppel against the government...
While we recognize that applicant may have invested a significant amount of time and money in taking the bar examination, the public interest in conducting a thorough investigation of an applicant’s character and fitness is of paramount concern. We therefore conclude that the fact that applicant was permitted to take the examination did not estop the Committee from continuing its investigation.
And the court expressed concern about his candor in the process thus
At oral argument, applicant requested to be permitted to reapply for admission less than two years from the date of the Committee’s denial if this Court affirms the Committee’s decision. See V.R.A.B. 19 (providing that applicant who is denied certification of good moral character and fitness may not reapply for admission for two years from denial). In light of the record in this case, we see no reason to grant this request, and it is denied.