Character and Fitness

Enjoy this koala.

In re Grundstein, 2018 VT 10

By: Elizabeth Kruska

Getting to be a lawyer is hard, and probably, justifiably so. People go to lawyers to help them solve serious legal issues and need to be able to trust that the lawyer they’re talking to has the knowledge and ability to assist. People also need to be able to trust that the lawyer they’re talking to is sanctioned to give advice. The fact of the law license is the way the state signals to the public that So-And-So, Esq. meets the appropriate level of competence to practice law in that jurisdiction.

Going to and graduating law school isn’t enough to be a lawyer. (We also have a 4-year law office study program in Vermont which can take the place of law school.) You also have to take the bar exam. Easier said than done. Also you have to pass it. Also easier said than done. A prospective lawyer then also has to apply to be admitted to the bar, and that includes a review of character and fitness. This involves alerting the licensing board about such things as prior criminal history (if any), past due child support or taxes (if any), and prior attorney licensing or disciplinary actions in other states. The last is relevant for attorneys who are licensed in one state and then try to become licensed in another state. The new state will review everything, and will want to know if there had been any professional responsibility issues in the other state where that attorney practiced.

And the reason for this, of course, is to help ensure the public’s confidence that the attorneys they choose to call are not only people who possess the legal acumen to do the job, but also are of good character. Although this would be a fun time to tell lots of lawyer jokes, the truth is that lawyers are, by and large, some of the most scrupulous people you’ll meet. And that’s generally because lawyers did not enjoy the necessary hoop-jumping to get the law license in the first place, and aren’t about to do anything to lose it. At least, the lawyers we know take that position. We’re also very practical people.

So, that takes us to this case. The applicant to the Vermont bar graduated law school in Ohio in 1985 and then lived in New Hampshire for a while, although not practicing law. Then he worked for a time in New Mexico and then Washington State. He took and passed the Washington bar exam in 1991 but decided to work in the restaurant industry rather than practice law. He moved back to Ohio for family reasons a few years later, where he stayed until 2002. Then he moved back to New Hampshire, and finally to Vermont. 

Applicant wanted to become licensed to practice law in Vermont, and did the required applications. On his character and fitness application he disclosed two criminal convictions from Ohio: a 2002 conviction for improper firearm storage and a 2008 conviction for altering a court document. There was also an issue of Applicant having been disbarred in Washington State, and this needed to be investigated. We’ll get to the second part in a moment.

A criminal conviction, in and of itself, isn’t necessarily going to bar someone from practicing law. Licensing boards generally understand that things happen and that if someone has appropriately rehabilitated him or herself and if there’s not going to be a risk to the public for licensing the attorney because of the prior offense, this may be able to get worked out. However, the disclosure of a conviction is probably going to raise the attention of the professional responsibility board, which is probably going to want to do some investigating and ask some questions before making a licensing decision.

When the Vermont Character and Fitness Committee (Committee) received the applicant’s application and information, they had some questions. Before going to much further, I’ll share the outcome. The Committee held a hearing and found that the applicant did not pass the character and fitness requirements for admission. He appealed, and SCOV affirmed.

When SCOV reviews a Committee decision, SCOV is allowed to “take any action consistent with its constitutional authority.” That’s because ultimately, it’s the Supreme Court that regulates and oversees the practice of law in the state. SCOV has plenary authority to review the Committee’s findings. Often SCOV stays out of findings below, but because this falls specifically under SCOV’s authority to regulate lawyers, it has full authority to dive in and make its own judgment. 

In this case, though, SCOV agreed that the Committee made the right finding. SCOV also considered the applicant’s arguments.

The first argument was an equity argument of estoppel and laches. Essentially Applicant argued that the Committee was not even allowed to investigate his character and fitness at that point because he had been permitted to sit for the bar exam. There’s a prior case that makes a requirement that an applicant has to pass character and fitness in order to qualify for “the privilege of taking the bar examination.” As someone who’s taken the bar, I appreciate the plucky use of the word “privilege” here. In any case, Applicant’s point is that the Committee should not have permitted him to go forward with the exam if he was not of good character.

The problem is that there’s a knowledge component to estoppel. The party to be estopped must know the facts, that party intended its conduct would be acted upon, the aggrieved party did not know the true facts, and the aggrieved party relied on the other party to its detriment. If the party seeking to be estopped is the government, there’s an additional hurdle of showing that failure to estop the government sufficiently outweighs any public interest or policy that would result from estopping the government. That’s a mouthful. 

SCOV says that the applicant wasn’t able to meet the elements of estoppel. SCOV goes on to say that even if the elements were met, there’s a significant public policy in favor of regulating lawyers to ensure that people of good moral character and fitness become licensed. 

There was another argument about fitness. The applicant argued he was fit. SCOV says the issue here was really more of one about character.

SCOV started with the fact the applicant had some issues in the states of Ohio and Washington. There was some evidence that the applicant hadn’t been candid about his past. He was convicted of altering a court document in 2008 and was disbarred in Washington in 2012. Although these things, on their own, do not compel a finding that the applicant lacks moral character, SCOV found he was not forthcoming about those matters. He was asked to provide information but didn’t. He was also required to include information about civil actions to which he was a party, and omitted many such actions that were known to have existed. He said he had no contempt judgments against him, although it was known he did. Additionally, SCOV noted that the applicant represented himself on appeal, and felt his conduct through the course of the appeal fell short of appropriate for appellate litigation.

SCOV again reiterated that it has the ability to do a plenary review of the Committee record. It appears there was a voluminous record of information, including many decisions and records from courts in various states. SCOV isn’t taking a position on the merits of any rulings in any of those cases. SCOV is more interested in the fact the documents and decisions exist, and that the applicant didn’t disclose them. 

Last the applicant sought permission to reapply in two years. SCOV said no.