Sunday, July 6, 2014

The Bar Admission Blues

In re Hirsch, 2014 VT 28

By Andrew Delaney

This case is about how not to get admitted to the Vermont bar.

Applicant’s first go at admission was in 2004. The Character and Fitness Committee denied his application on the basis that he didn’t demonstrate fitness to practice law, and he appealed. The SCOV appointed a commissioner to hear the appeal pursuant to some rule on admission that I’ve never read . . . uh, because the rules have changed since then.

The commissioner agreed with the Committee that applicant should not be admitted, but recommended that applicant be allowed to reapply if he got mental-health treatment for a year, complied with treatment recommendations, and gained insight into his illness and the need for ongoing treatment.

In 2008, applicant gave it another go and included medical authorizations to show compliance with the commissioner’s conditions. The National Conference of Bar Examiners (NCBE) did a preliminary investigation into applicant’s information and reported to Vermont (in most U.S. jurisdictions nowadays, the NCBE does the preliminary investigation before reporting back). The Vermont bar admissions administrator tried to get updated information from applicant, including updated releases. The administrator gathered some other information, and when applicant didn’t get the updated info in, eventually closed the application.

In 2011, applicant submitted updated disclosures and successfully reopened his application. The Committee also “received reports that applicant was denied admission to the New Hampshire and Maryland bars on fitness grounds.”

In early 2012, the Committee denied the application “based on (1) a doctor’s evaluation that concluded that applicant was not fit to practice law, (2) a 2006 incident with the police in Albany, New York, and (3) applicant’s testimony at a family court judge’s retention hearing in 2009.”

Applicant appealed, and the SCOV again appointed a commissioner “to conduct a de novo evidentiary hearing.” The commissioner asked for more medical records, which applicant refused to provide. He did submit a bunch of letters from his doctors in support of his application. After the hearing, the commissioner issued a fifteen-page written report that recommended denial of his application. The bases in a nutshell were: (1) failure to follow treatment plans; (2) failure to cooperate with releasing medical records; and (3) applicant’s “demonstrated ‘continuing paranoia and obsession with the corruption’ of the Vermont family court.” The latter reason, the commissioner opined, was the overwhelming issue and rendered applicant unable to properly serve potential clients as it clouded his judgment in an overwhelming manner. Applicant appealed.

The SCOV first notes applicant’s facial challenges under the Americans with Disabilities Act (ADA) and the U.S. and Vermont Constitutions to questions on the NCBE form. Briefly, the SCOV explains: (1) the reason for those questions is to ensure that an applicant doesn’t have a medical condition that would prevent the applicant from carrying out duties to clients, courts, or the profession; (2) neither the Committee nor the Commissioner got into these arguments; and (3) the SCOV isn’t about to either because it concludes “that the record amply supports the conclusion that applicant’s conduct, wholly apart from his mental health history or status, demonstrates his lack of fitness.”

Applicant argues he wasn’t given adequate notice of the reasons for denial. The SCOV disagrees. He was given specific reasons and also given plenty of opportunities to show why he should be admitted.

On the merits, applicant goes with the old the-evidence-was-insufficient-to-support-the-findings-and-conclusions argument. Like the proverbial snowball, it melts pretty “damned” quickly. The SCOV first notes the rules of admission to the bar provide that the good-character-and-fitness burden is on the applicant. The SCOV also notes that although it may be aided by the commissioner’s findings, it is the decider. (You have to say the last sentence in a “W” voice.)

The SCOV recognizes “the need for compassion and respect towards those who suffer from mental health disabilities, the vast majority of whom are able to effectively treat their symptoms and contribute productively to society.” The SCOV isn’t taking this evaluation lightly.

But ultimately it’s applicant’s conduct—not his mental health—that “demonstrates his unfitness to practice law.” Applicant made a number of statements in various courts accusing a Vermont magistrate “of lying and conspiring to prevent his admission to the bar of New Hampshire.” Applicant also maintains “that he is competent to provide drug counseling to narcotics users without a license.” The SCOV agrees with the commissioner’s conclusions that applicant’s actions reflect negatively on his ability to practice law competently. Applicant’s paranoia surrounding the Vermont family-court-system is “pervasive,” and colors his entire view of the system in such a way that he is unable to be objective. Likewise, his belief that he is able to provide counseling services without any licensure indicates that he would be willing to take on cases that he is not capable of handling competently.

The SCOV denies the application as well.

There are a number of schools of thought on how the character-and-fitness part of the bar-admissions process should be approached. On a personal level, my feeling is that when you apply to be a member of the bar, you need to disclose everything that might reflect poorly on your ability to practice law, and you need to be able to explain why these things will not happen again or why any concern is unwarranted. I’m not saying that you need to disclose the impure thoughts you had about your second-grade teacher (‘sup Ms. Fairchild? How you doin’?), but you need to be able to make your case, warts and all. That’s what good lawyers do. And if you’ve got some skeletons in your closet, the character-and-fitness-application process might just be a great opportunity to develop that skill.

Everybody makes mistakes. We’re a self-regulating profession, and when mistakes are part of an applicant’s record, we want people who learn from mistakes and take responsibility for their actions. At least that’s my take on it. Your mileage may vary.

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