APPLICATION OF T.J.S.
No. SMC-96-006
SUPREME COURT OF NEW HAMPSHIRE
141 N.H. 697;
692 A.2d 498;
1997 N.H. LEXIS 24
April 3, 1997, Decided
SUBSEQUENT HISTORY:
[***1]
Released for Publication May 8, 1997.
DISPOSITION: Application denied.
HEADNOTES: 1. Attorneys--Admission to Practice--Character and
Fitness
As in a petition for
reinstatement or readmission to practice law in this State, an initial applicant must prove
his
"good moral character" by
clear and convincing evidence. RSA 311:2; Sup. Ct. R. 42(5)(f).
2. Attorneys--Admission to Practice--Character and
Fitness
Although a
prior felony conviction is not,
per se, a bar to admission to the New Hampshire Bar, a
prior conviction for
felonious
sexual assault raises a presumption of
unfitness. RSA 632-A:3, 311:2; Sup. Ct. R. 42(5)(f).
3. Attorneys--Admission to Practice--Character and
Fitness
Applicant for admission to New Hampshire Bar, who had been
convicted on six counts of
felonious
sexual assault on two
female students while he was employed as
a
teacher, did not meet his
burden of proving by
clear and convincing evidence that he possessed the
"good moral character" necessary for the
practice of law. Despite evidence of his
rehabilitation, his conduct was the product of neither inexperience nor immaturity, the period
since the end of his sentence was relatively brief, there were questions
regarding his
candor, and his offense displayed the gravest abuse of trust. RSA 632-A:3, 311:2; Sup.
Ct. R. 42(5)(f).
COUNSEL: Nelson, Kinder, Mosseau, and Gordon, P.C., of Manchester (Martha V. Gordon by
memorandum and orally), for the applicant.
T.J.S., orally, pro se.
James L. DeHart, orally, for the committee on character and fitness.
JUDGES: BROCK, C.J. All concurred.
OPINIONBY: BROCK
OPINION:
[*698]
[**499] BROCK, C.J. The applicant, T.J.S., seeks admission to the New Hampshire Bar.
The committee on character and
fitness (committee), by
majority vote, concluded that the applicant had not satisfied his
burden of proving sufficient character and
fitness to practice law in this State. In response to the adverse
recommendation, the applicant appeared before this court to show cause why his application for
admission should not be denied. See Sup. Ct. R. 42(5)(k). Because it is
"the duty and power of the court to guard its portals against intrusion by men
and women who are
[**500] mentally and morally dishonest, unfit because of bad character, evidenced by
their course of conduct, to participate in the [practice of] law,"
In re Monaghan,
[***2] 126 Vt. 53, 222 A.2d 665, 670 (Vt. 1966), we deny T.J.S.'s application.
In 1986, the applicant was
convicted on six counts of
felonious
sexual
assault of two of his
female students while he was employed as a junior high and high school
teacher. See RSA 632-A:3 (1996). He served a total of approximately four years in the
State Prison. While incarcerated, he participated in sex offender counseling
and was by all reports a model prisoner. Since his release from prison, the
applicant has married, graduated from law school, successfully completed the
bar examination, and currently works for a law office in a nonlawyer capacity.
In response to a question on the bar application, the applicant disclosed his
felony convictions. Subsequently, the committee undertook an extensive review of the
applicant's background and rehabilitative efforts. The committee's
investigation included several
[*699] personal interviews with the applicant, review of his references and other
background material, and evaluation of the opinions of several mental health
practitioners. At the conclusion of a
final hearing on March 8, 1996, the committee, by
majority vote, recommended that the applicant's petition be denied.
As a
[***3] general rule, we accord deference to a fact finder's determination of witness
credibility and resolution of disputed questions of fact. See
Budnitz' Case, 139 N.H. 489, 491, 658 A.2d 1197, 1198 (1995). Nevertheless, the committee's
recommendation is advisory only and
"neither binds this court nor limits its authority to take action."
In re Childress, 138 Ill. 2d 87, 561 N.E.2d 614, 619, 149 Ill. Dec. 244 (Ill. 1990); see Sup. Ct. R. 42(5)(f).
To be admitted to practice law in this State, an applicant must possess
"good moral character." RSA 311:2 (1995). The
burden of proving his or her
"good moral character" lies with the applicant.
Application of Appell, 116 N.H. 400, 401, 359 A.2d 634, 636 (1976); Sup. Ct. R. 42(5)(f). Although the applicant maintains that he may prove his
fitness to practice law by a mere preponderance of the evidence, we hold that, as in a petition for
reinstatement or readmission, see Prof. Conduct Comm. R. 2.13(b), the applicant must prove
his
"good moral character" by
clear and convincing evidence. See
In re Mustafa, 631 A.2d 45, 47 (D.C. 1993);
In re Jaffee, 311 Ore. 159, 806 P.2d 685, 687 (Or. 1991); see also
Application of Hughes, 594 A.2d 1098, 1101 (Me. 1991).
"Good
[***4]
moral character" refers to
"those qualities of truth-speaking, of a high sense of honor, of granite
discretion, of the
strictest
observance of fiduciary responsibility, that have, throughout the centuries,
been compendiously described as 'moral character.'"
Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957) (Frankfurter, J., concurring). Among the essential aspects of good character
are
"respect for the rights of others and for the law, fairness, trustworthiness and
reliability, and a professional commitment to the judicial process and the administration
of justice."
In re Manville, 494 A.2d 1289, 1298 (D.C. 1985) (citations omitted).
A
prior felony conviction is not, per se, a bar to admission. See generally Carr, Note, The Effect of
Prior Criminal Conduct on the Admission to Practice Law: The Move to More
Flexible Admission Standards,
8 Geo. J. Legal Ethics 367 (1995). The nature of the wrong committed, however, is
central to the determination of present character and
fitness to practice law, see
In re Childress, 561 N.E.2d at 620, and a
prior conviction for certain serious crimes raises a presumption of
unfitness, see
In re Manville, 538 A.2d
[***5] 1128, 1138 (D.C. 1988) (Terry, J., dissenting). Indeed, there are some
[*700] crimes which are so serious that it may be virtually impossible for the
applicant to rebut this presumption. Cf. In the
Matter of Dortch, 344 Md. 376, 687 A.2d 245, 252 (Md. 1997) (Raker, J., concurring) (analyzing
rehabilitation factor of American Bar Association test); see also
Application of Matthews, 94 N.J. 59, 462 A.2d 165, 176 (N.J. 1983) (same).
A
prior conviction for
felonious
sexual assault raises a presumption of
unfitness.
[**501] Cf.
Otis' Case, 135 N.H. 612, 618-19, 609 A.2d 1199, 1203-04 (1992) (attorney's
sexual assault of client warrants
disbarment). The legislature has recognized that the commission of
felonious
sexual assault is sufficient basis to deprive a person of certain rights and privileges. By
law, a person
convicted of
felonious
sexual assault can never again be certified to teach in this State, see RSA 189:13-a, VI
(Supp. 1996), obtain a liquor license, see RSA 178:25 (1994), or possess a
firearm, see RSA 159:3, :3-a (1994). In addition, RSA 632-A:10, I (1996) makes
it a
felony for such a person to engage in
employment or volunteer service involving the care, instruction or guidance
[***6] of minor children, including, but
not limited to, service as a
teacher, a coach, or worker of any type in child athletics, a day care worker, a boy or
girl scout master or leader or worker, a summer camp counselor or worker of any
type, a guidance counselor, or a school administrator of any type.
Plainly stated, the applicant's
felony convictions for sexually assaulting his adolescent
female students conclusively prove that at that time, the applicant was devoid of
"good moral character." See
Matter of Prager, 422 Mass. 86, 661 N.E.2d 84, 89 (Mass. 1996). It is our task to determine whether he is sufficiently rehabilitated so as to
remove the serious
taint of his prior
unfitness,
Application of Matthews, 462 A.2d at 176, and displays a present
"good moral character which emphasizes honesty, fairness, and respect for the rights of others and
for the laws of this state and nation."
Petition of Wright, 102 Wash. 2d 855, 690 P.2d 1134, 1136 (Wash. 1984) (quotation omitted).
When an applicant for bar admission has engaged in
serious misconduct, the following factors should be considered in determining current character
and
fitness to practice law:
the applicant's age at the time of the conduct
the
[***7] recency of the conduct
the
reliability of the information concerning the conduct
the seriousness of the conduct
the factors underlying the conduct
[*701] the cumulative effect of conduct or information
the evidence of
rehabilitation
the applicant's positive social contributions since the conduct
the applicant's
candor in the admissions process
the materiality of any omissions or misrepresentations
American Bar Association Section of Legal Education and Admissions to the Bar
and the National Conference of Bar Examiners, Comprehensive Guide to Bar
Admission Requirements 1992-93 (1992). With those factors that apply to the
applicant as a template, we analyze T.J.S.'s application.
The
sexual
assaults for which the
applicant was
convicted occurred when he was in his late twenties. Although the applicant's expert
reported that unfortunate childhood experiences kept T.J.S. from
"fully developing," this State holds persons eighteen years of age and older to an adult standard
of conduct, see RSA 21:44 (1988). Indeed, in some circumstances persons as
young as thirteen may be held criminally responsible for their actions. See RSA
628:1 (1996). Consequently, we conclude
[***8] that the applicant's conduct, occurring after he had completed college and was
employed in his chosen field,
"was the product of neither inexperience nor immaturity."
Matter of Prager, 661 N.E.2d at 92.
More than ten years have passed since the latest
sexual assault for which the applicant was
convicted. We note, however, that the applicant was incarcerated for four of those years
and released from parole only three years prior to the final hearing before the
committee. Although no fixed number of
years of good behavior is required to prove
"good moral conduct,"
In re Polin, 630 A.2d 1140, 1141 (D.C. 1993), the period since the end of the applicant's sentence is relatively brief. See
Petition of Wright, 690 P.2d at 1137.
The applicant has been
honest and straightforward in revealing his
felony convictions to his law school, his employers, and the committee. We note,
however, that failure to do so on the bar application could subject the
applicant to subsequent disciplinary procedures. See N.H. R. Prof. Conduct
[**502] 8.1. Thus
candor in these circumstances was merely what was required. See
In re Childress, 561 N.E.2d at 621.
His
candor before the committee, however,
[***9] was not as clear. The committee found the applicant to be
"too articulate, glib and adept at explaining away his past behavior." Additionally, it found his explanation of the events that precipitated the
withdrawal of one of his letters of support
"not believable."
The six
sexual
assaults
against the two students for which the applicant was
convicted are grave indeed. They do not encompass
[*702] the entirety of the applicant's offenses, however. The applicant admits to
having improper
sexual relations over a course of three years with eleven
female students between the ages of thirteen and seventeen. His conduct ranged from
kissing some of the students to
sexual intercourse with others.
Evidence of
rehabilitation weighs strongly in an applicant's favor.
"The concept that human redemption is possible and valuable is both well
established in law and premised upon long-standing, even ancient traditions."
Matter of Prager, 661 N.E.2d at 89 (quotation omitted). Of course,
"the more serious the misconduct, the greater the showing of
rehabilitation that will be required."
Application of Matthews, 462 A.2d at 176. Moreover,
"it must be recognized that in the case of extremely damning past
[***10] misconduct, a showing of
rehabilitation may be virtually impossible to make."
Id.
We note that
"the applicant's determination to conclude his criminal activity apparently did
not flow from an 'inborn' resolve to change his
moral character."
Application of K.B., 291 Md. 170, 434 A.2d 541, 545 (Md. 1981) (quotation omitted). Rather, after three years of molesting numerous
female students, the
sexual
assaults terminated only when the applicant was arrested.
"In order to maintain public
confidence in the bar and trust among members of the bar, attorneys must be
honest in their dealings . . . ."
Carpenito's Case, 139 N.H. 168, 174-75, 651 A.2d 1, 5 (1994). The offenses that culminated in the applicant's
felony convictions, however, displayed the gravest abuse of the trust
conferred upon him as a
teacher. That he used his position of authority to his students' disadvantage is
unquestioned. In their role as counselors, attorneys are
conferred great trust and
confidence
by their clients; the applicant has failed to convince us that, given the
opportunity, he would not breach such trust and
confidence.
We by no means intend to discourage the positive personal and professional
development
[***11] that the applicant has achieved. But
the right to practice law is not one of the inherent rights of every citizen,
as is the right to carry on an ordinary trade or business. It is a peculiar
privilege granted and continued only to those who demonstrate special
fitness in intellectual attainment and in
moral character. All may aspire to it on an absolutely equal basis, but not all will attain it.
In re Keenan, 314 Mass. 544, 50 N.E.2d 785, 786-87 (Mass. 1943). The applicant has not met his
burden of proving by
clear and convincing evidence that he possesses the
"good moral character" necessary for the
practice of law. Any doubt concerning his character and
fitness
"should be
[*703] resolved in favor of protecting the
public by denying admission to the applicant."
In re Jaffee, 319 Ore. 172, 874 P.2d 1299, 1302 (Or. 1994).
We are mindful that there are situations where meaningful
rehabilitation will overcome the prior
taint of
serious misconduct; this is not such a case. The applicant here, we believe, has failed to
demonstrate the required
"good moral character" to warrant admission to a profession that demands
"not only ability of a high order, but the
strictest integrity."
Ricker's Petition,
[***12] 66 N.H. 207, 250, 29 A. 559, 581 (1890) (quotation omitted).
Application denied.
All concurred.
