"Innermost Feelings And Personal Views"

The Georgia Supreme Court affirmed a Board to Determine Fitness of Bar Applicants  decision denying bar admission on character and fitness grounds

The record shows that Montesanti graduated from Florida Coastal School of Law in 2015 at the age of 67. He commenced his fitness application for the Florida Bar while enrolled in school, and after a two and one-half year investigation process requiring several amendments to the application, and after specifications were issued as to why his application should be denied, Monetsanti withdrew his application to the Florida Bar before the date of a scheduled hearing and before a final determination on his application. Montesanti then applied to the Georgia Bar for a certificate of fitness. After several amendments were made to his Georgia application in response to inquiries by the Board, an informal hearing was held. The Board issued a tentative denial, and issued specifications giving the applicant notice of the basis for the tentative decision. 

A formal hearing was conducted

As noted in the hearing officer’s findings, Montesanti demonstrated a pattern of failing to disclose relevant information to the Board and providing  inconsistent statements to both the Board and the Florida Bar. For example, Montesanti provided different explanations to the Board for his non-payment of a judgment against him in a small claims court case—at one stage saying he forgot to pay and at another point acknowledging he intentionally did not pay the judgment because he disagreed with it, though he now understands he was wrong in refusing to pay. The record showed he provided two different reasons in letters to the Florida Bar for withdrawing his application for fitness in that state—in one letter stating that he had to withdraw for financial reasons and in another letter stating he had to withdraw due to an “undetermined illness.” The record shows that at the informal conference with the Board, Montesanti stated he did not recall writing the second letter, didn’t know what he meant by “undetermined illness,” and assured the Board he was healthy and his health was not the reason he withdrew his application. At the formal hearing, and in his appeal, Montesanti claims his memory and attention was impaired during the application process by the effects of lack of sleep because he suffers from sleep apnea. These inconsistencies and evolving explanations for conduct relevant to the Board’s determination of fitness demonstrate a lack of candor and honesty.

A former law professor in a clinic offered adverse testimony

One of Montesanti’s grounds for challenging the Board’s denial of his application is his claim that the Board improperly failed to verify or corroborate the derogatory statements about his character that were offered by a former law school professor who supervised his work as an intern at a public benefits law clinic while he was a student. Because Montesanti identified this professor as his supervisor at the legal clinic, the Board forwarded a questionnaire to the professor and she responded in writing with negative comments on Montesanti’s character...

According to the professor’s testimony, Montesanti acknowledged to her that he had purposely omitted and withheld information sought by the Florida Bar in its fitness inquiry, and that he felt it was justifiable for him to do so, because he did not believe the Bar was entitled to have all the information it sought. He also asserts the professor’s comments about him should have been excluded as privileged. We find no basis for excluding this character witness’ testimony as the evidence shows she had personal knowledge of information relevant to the Board’s inquiry into Montesanti’s character and fitness to be admitted to the Georgia Bar.

He contended that the failure to accommodate his sleep apnea violated the ADA, which the court rejected

Fitness determinations require the Board to examine an applicant’s “innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness and self-restraint which are usually associated with the accepted definition of good moral character.” (Citation and punctuation omitted.) In re Lubonovic, 248 Ga. 243, 245 (282 SE2d 298) (1981). When asked at the hearing if he understood that a condition that would cause a person to lie or provide false answers would disqualify that person from being certified as fit to sit for the Bar examination, Montesanti responded affirmatively, but stated that he was now being treated for this condition. Montesanti essentially asks for a waiver of certification, or an accommodation from being subjected to an examination of his character and fitness, based on an alleged inability to be truthful, accurate, and forthcoming in his bar application disclosures and his professional dealings. All applicants, however, are held to the same standard for good character and fitness.

(Mike Frisch)