In re Application of POLLY A. HUGHES for Admission to the Bar of the State of
Maine
Decision No. 5903, Law Docket No. PEN-91-92
Supreme Judicial Court of Maine
594 A.2d 1098;
1991 Me. LEXIS 194
June 18, 1991, Argued
August 2, 1991, Decided
DISPOSITION:
[**1]
Order granting admission to the bar vacated. Remanded to the single justice for
further proceedings consistent with the opinion herein.
COUNSEL: Attorney for Appellant: Karen G. Kingsley, Esq., (orally), Assistant Bar
Counsel, Board of Overseers of the Bar, Augusta, Maine.
Attorney for Appellee: George Z. Singal, Esq. (orally), Daniel A. Pileggi,
Esq., GROSS, MINSKY, MOGUL
& SINGAL, Bangor, Maine.
JUDGES: McKusick, C.J., and Roberts, Glassman, Collins, and Brody, JJ. All concurring.
OPINIONBY: PER CURIAM
OPINION:
[*1099] The Board of Bar Examiners (the Board) appeals the order of a single justice
of the Supreme Judicial Court (Wathen, J.) admitting petitioner Polly A. Hughes
to the bar despite the Board's refusal to give her the
certificate of
good moral character required for admission by 4 M.R.S.A.
§ 805-A(1) (1989) and M. Bar. Adm. R. 8, 9(a). Contrary to petitioner's
contentions, we hold that we have
jurisdiction to review the single justice's decision and that the Board possesses standing to oppose
her admission and to appeal the justice's order. On the merits of this appeal,
we vacate the single justice's order.
The petitioner is a former member of the Georgia bar who in the period
1975-1980 embezzled large sums from
[**2] clients and engaged in other
fraudulent conduct in the
practice of law. We hold that an applicant for admission in petitioner's circumstances carries
a
substantially higher burden than a person applying for original admission to
the bar; she is required by M. Bar R. 7(o)(5) to prove that her
reinstatement in the
legal profession after
disbarment in another state will not be
detrimental to the
public interest and she must prove that fact by
clear and convincing evidence, i.e., to a
high probability. Since the single justice did not require the
heightened
standard of proof and also did not make the full findings specifically required by Rule 7(o)(5),
we remand for
reconsideration of petitioner's application.
The single justice stated the pertinent facts as follows:
Petitioner graduated from the University of Tennessee with a law degree in 1968
and was admitted in that same year to the Georgia Bar. After working for
others, she started her own firm in 1971 and devoted her practice largely to
real estate matters. The firm grew rapidly to include seven lawyers. Beginning sometime
after 1975, petitioner began to divert funds in a
real estate escrow account to cover firm and personal expenses.
[**3] Finally, in 1980, she consulted an attorney and disclosed her criminal
activity to the U.S. District Attorney. Ultimately, she pleaded guilty to two
counts of making false statements on
real estate closing forms involving Department of Housing and Urban Development loans. She
was
convicted, sentenced to a suspended term of four years, with five years of
probation and a public service requirement. As part of the proceedings, she also
resigned from the Georgia Bar, and her
resignation was accepted. The sentence that she received was influenced by the fact that
she was a divorced mother with three children, she had come forward and
reported her criminality even though she was not the subject of any
investigation, and the court found that her self-destructive
behavior resulted from a dysfunctional childhood. After two and one-half years,
the sentencing court terminated the
probation and discharged petitioner from her sentence. She subsequently moved to Maine,
and since 1986 has worked as a paralegal in the Legal Division of the Maine
Department of Transportation.
Petitioner passed the bar examination in Maine in 1989. In her application, she
fully and truthfully disclosed her history.
[**4] Because that application gave rise to
"doubt . . . concerning [petitioner's]
good moral character," the Board held a hearing pursuant to M. Bar Adm. R. 9(d). On the basis of the
evidence presented at the hearing, the Board found that she did not have the
requisite
good moral character and denied her the
certificate. Thereafter, in December 1990, petitioner pursuant to M. Bar R. 1(b) made a
direct motion for admission to
[*1100] the bar before a single justice of the
Supreme Judicial Court. After an evidentiary hearing, at which the Board
appeared in opposition to petitioner's motion, the single justice ordered
petitioner admitted to the bar, finding on a
preponderance standard that petitioner was morally fit to practice law. The Board then sought review
by the full court. We undertake that review sitting as the Law Court.
I.
Jurisdiction and Standing
The Law Court has undoubted
jurisdiction to review the single justice's decision to
admit an applicant to the bar. The Supreme Judicial Court has inherent authority to
admit attorneys to the bar that cannot be limited by legislation. See
In re Feingold, 296 A.2d 492, 496 (Me. 1972). In promulgating rules to implement this
[**5] power, the court has honored legislation requiring the creation of a Board of
Bar Examiners and generally following the legislative scheme for bar admission.
The court has also provided that applications for admission be
heard and decided by a single justice. See M. Bar R. 1(b);
In re Feingold, 296 A.2d at 496; 4 M.R.S.A.
§§ 801 to 805-A (1989). Rule 1(c) of the Maine Bar Rules allows review of the
action of a single justice in exercising a power of the Supreme Judicial Court:
Except where powers are expressly given to the full Court, or the context
indicates clearly that the full Court alone is to have the power, the powers of
the Court with respect to these rules may be exercised by a single justice of
the Court, subject to appropriate review by the Law Court.
(Emphasis added) It is entirely appropriate for the Law Court to review a
single justice's order for bar admission, pursuant to the authority reserved by
the Supreme Judicial Court in Rule 1(c). Moreover, review of the single justice's decision for errors of law falls
within the legislature's grant of jurisdiction to the Law Court, 4 M.R.S.A.
§ 57 (1989):
"The following cases only come before
[**6] the court as a court of law: Cases on appeal from the Superior Court or a
single Justice of the Supreme Judicial Court [and] cases presenting a
question of law . . . ." See
In re Feingold, 296 A.2d at 496 (in absence of judicial rule, denial of admission by single justice reviewable
by full court as a
question of law or decision of single justice under 4 M.R.S.A.
§ 57).
We conclude also that the Board has standing to appeal the single justice's
order of admission.
"Undoubtedly, in any case in which the Board of Bar Examiners refuses to issue
the
certificate of
qualification under 4 M.R.S.A.
§
802 then the Board itself should be made a party defendant and would defend its
action through the Attorney General or privately retained counsel." n1
In re Feingold, 296 A.2d at 498. It follows that the Board can challenge a single justice's contrary finding of
good moral character. The Board is the body responsible for assisting the court and the State of
Maine in determining the
qualification of any applicant for admission to the bar. It is entitled, either as appellee
or appellant, to participate in any proceeding challenging its actions
"by reason
[**7] of its interest in defending its policies as reflected in [those] actions."
Bureau of Taxation v. Town of Washburn, 490 A.2d 1182, 1184 (Me. 1985).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Since we made the quoted statement in In re Feingold, the office of Bar
Counsel has been created by M. Bar R. 5, and in the current
proceeding Bar Counsel represents the Board of Bar Examiners.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II.
Standard of Proof on a Petition for
Reinstatement to the Bar
In addition to producing evidence of
competency,
candidates seeking their first admission to the bar need
"produce to the Board [of Bar Examiners] satisfactory evidence of
good moral character." M. Bar Adm. R. 9(a). In contrast, because a
disbarred lawyer seeking
reinstatement has once proved unworthy of
membership in the
legal profession, Maine Bar Rule 7(o) imposes a much greater burden on that
candidate for
reinstatement than upon a person seeking admission as an original matter. To be restored to
membership in the bar after having been disqualified,
[*1101] the petitioner . . . shall have
[**8] the burden of demonstrating the moral
qualifications,
competency and learning in law required for admission to practice law in this State, and
that
reinstatement will not be
detrimental to the integrity and standing of the Bar, the administration of justice, or to
the
public interest.
M. Bar R. 7(o)(5) (emphasis added). n2 The Bar Rules treat an attorney who has
been
disbarred in another state as if the attorney had been
disbarred also in Maine. See M. Bar R. 7(m). By virtue of her
disbarment in Georgia, n3 we therefore evaluate petitioner's application for admission to
the Maine bar according to the provisions of M. Bar R. 7(o) for
reinstatement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The Board of Bar Examiners urges that in addition to proving the elements
set forth in Rule 7(o), a
candidate for admission to the Maine bar who has been
disbarred in another state must first be reinstated to that other state's bar. Even if
petitioner had satisfied Georgia's requirements for readmission, she would
still be
required to establish that she was qualified for admission to the Maine bar.
Because she has failed to meet Maine's requirement for
reinstatement, we need not address the further legal question posed by the Board.
[**9]
n3 Petitioner in the course of disciplinary proceedings against her resigned
from the State Bar of Georgia and her
resignation was accepted by the Georgia bar disciplinary board. For the purposes of her
present motion to reenter the
legal profession, Georgia's acceptance of petitioner's
resignation is the equivalent of
disbarment. See M. Bar R. 7(o)(1), 7(l)(1).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The standard to which an applicant for
reinstatement must prove the additional elements required by Rule 7(o) is a high one.
"Although the
preponderance standard normally prevails in a civil case, appellate courts in a large number of
categories of litigation have found compelling
reasons for requiring a higher
standard of proof."
Taylor v. Commissioner of Mental Health, 481 A.2d 139, 150 (Me. 1984) (clear and convincing proof of no danger to the public is required for release
of a person committed to mental hospital following his acquittal by reason of
insanity). One such category is represented by cases in which courts are called
upon, as we are here, to protect the public by predicting that an individual
will
[**10] not repeat past behavior that has caused that person to be placed under a
disability or restraint. Id. The
heightened standard required for release from that
disability or restraint is especially warranted when the individual's predicate behavior
has been found to exist by a clear and
convincing standard or by the more stringent criminal standard of
"beyond a reasonable doubt." In such cases,
clear and convincing evidence helps to insure the accuracy of the
court's prediction. Id. Here petitioner admitted to and was
convicted of
fraudulent conduct in the
practice of law. Because we are required specifically to determine that her
reinstatement will not be
detrimental to the
public interest, we must be assured that she will not engage in that conduct if she is
permitted again to hold herself out as an attorney. Petitioner, therefore, must
present
clear and convincing evidence to that effect. Cf.
In re Hiss, 368 Mass. 447, 454-55, 333 N.E.2d 429, 435 (1975) ("before he again will be entered on the rolls as an attorney eligible to
practice, the
disbarred attorney who has committed the grave offenses to which the Bar Counsel directs
attention must
[**11] bear a heavy burden of proof and pass the close scrutiny to which reviewing
courts subject petitions for
reinstatement"). The
public interest especially demands such close scrutiny when the nature of a petitioner's prior
conduct related directly to
"'the
public confidence necessary to the proper performance of the duties of an
attorney . . . .'"
In re Hiss, 368 Mass. at 461 n.20, 333 N.E.2d at 438 n.20 (quoting
Matter of Keenan, 314 Mass. 544, 548, 50 N.E.2d 785, 788 (1943)). By the clear and
convincing standard, petitioner is required to prove to a
high probability, rather than by a mere preponderance, that her
reinstatement in the
legal profession despite her past misconduct will not be
detrimental to the
public interest in the future. See
Taylor v. Commissioner of Mental Health, 481 A.2d at 152.
III.
Remand for
Reconsideration by the Single Justice
The single justice applied only the usual civil
preponderance standard in ruling
[*1102] on petitioner's application. Furthermore, he did not make the findings
required by M. Bar
R. 7(o)(5) for petitioner's
reinstatement to the
legal profession. We therefore
[**12] remand to the single justice to reconsider petitioner's application.
On that
reconsideration the single justice will determine whether petitioner has proved to a
high probability that her admission to our bar
"will not be
detrimental to the integrity and standing of the bar, [to] the administration of justice,
or to the
public interest." M. Bar R. 7(o)(5).
Reinstatement in the bar requires more than the justice's earlier finding that petitioner
"has overcome the difficulties in her life and is fully rehabilitated in terms
of moral fitness"; improvement in petitioner's general moral character does not satisfy the
specific requirements of Rule 7(o). The predictive findings required by the
rule must be made in light of what has transpired in the past. In a course of
conduct persisted in for more than five years, coming after she had already
practiced law for seven years and at a time when she was in her mid-thirties,
petitioner took more than $ 400,000 from people who had put their trust in her
as their attorney, and to hide her defalcations she swore falsely to legal
documents required in her
real estate practice. Her admitted conduct constituted not merely
moral turpitude, but
moral
[**13] turpitude directly and specifically related to her
practice of law. We note that petitioner has had no experience in any capacity since 1980 that
has tested her rehabilitation for handling the money of others.
