Admission Ain't Automatic

Different Bar

In re Anderson, 2020 VT 75

By Andrew Delaney

Admission to the bar is a process. Part of the process is a character and fitness determination. Often, it’s a simple matter of running a background check and checking the applicant’s file for any concerns. When there are concerns, an applicant may have a hearing. The hearing panel will make a character and fitness determination. Ultimately, SCOV is responsible for overseeing bar admissions.

Back in 2018, Mr. Anderson applied to the Vermont bar, while he was still a student at Valparaiso University Law School. In his application, Mr. Anderson listed four civil cases he’d been involved in, one of which was a suit where he sued his law school because it wouldn’t reimburse him for pizza he’d bought for a school-sponsored Easter party.

He also listed some traffic tickets, some dismissed charges, some relatively old criminal convictions, and a theft charge stemming from an incident involving a police stop while Mr. Anderson was returning a flag to a courthouse after a friend had taken it during law school. Mr. Anderson explained that he was on his way to return it when the police stopped him. He refused to put the flag down when ordered to do so by police.

Mr. Anderson passed the Vermont bar exam. A member of the Character and Fitness (C&F) Committee reviewed his application. The C&F Committee member had some concerns and declined to certify Mr. Anderson’s good character and fitness. The Committee member reasoned that Mr. Anderson’s record demonstrated an inability to conduct himself professionally in conflicts and suggested untreated substance abuse. The member explained that when Mr. Anderson “is involved in a dispute in which he feels he is in the right, he becomes confrontational, combative, rude, swearing, and insulting.” The member also noted that counsel for the law school had gone so far as to suggest that Mr. Anderson’s pizza-reimbursement lawsuit was frivolous. Accordingly, the member felt that Mr. Anderson would not be able to conduct himself professionally as a lawyer.

The C&F Committee scheduled a hearing. Mr. Anderson filed a brief arguing that his “past reveal[ed] that he [would] almost certainly be an excellent, ethical lawyer.” He argued in his brief that any concerns were mitigated by his positives; that he had taken responsibility when in the wrong, and that the concerns about the pizza lawsuit, substance abuse, and failure to follow police instructions were irrelevant or neutral when understood in context.

After the hearing, the three-member panel certified Mr. Anderson’s good moral character. The panel found that Ms. Anderson was “well-spoken, polite, and professional with the panel and came across as generally credible.” Many of his witnesses spoke highly of him without reservation.

The panel was concerned, however, about Mr. Anderson’s ability to conduct himself professionally in conflicts and the fact that he “showed little if any remorse or understanding of the problematic nature of his [past] conduct.” He generally insisted that his actions were “justified and appropriate, regardless of the flimsy nature of most of these justifications.” Still, the panel reasoned that the totality of the evidence, including Mr. Anderson’s pre-law-school career, was enough to certify his good character—or at least enough not to deny his certification. The panel expressed hope that the process itself would help Mr. Anderson be more circumspect in the future.

SCOV is not so convinced and orders review on its own motion.

I’ve never seen this situation before. It doesn’t mean it hasn’t happened—I’m just saying I don’t think I’ve seen a case in Vermont where SCOV has decided to review a positive character and fitness determination on its own motion.

Mr. Anderson filed a brief. Licensing counsel did not, noting that while the panel had “wrestled” with the decision, licensing counsel believed the panel’s decision was supported. SCOV concludes that “given the Committee’s concerns about applicant’s prior conduct, it did not make sufficient factual findings to support its decision to certify applicant’s good moral character.” SCOV also concludes that—based on its own review of the record—Mr. Anderson has failed to demonstrate his good moral character. It probably doesn’t help that Mr. Anderson argues that the Vermont Rules of Admission “may as well end with a final section that reads ‘none of the above rules apply if the Supreme Court doesn’t like you.’”

The first argument Mr. Anderson makes is that SCOV lacks jurisdiction to review the C&F Committee’s certification. SCOV opines: “This argument is completely inconsistent with the Vermont Rules of Admission and the Court’s constitutional authority.” And that’s really all we need to get into on that point. There’s some explanation and citations, but as the saying goes, “Don’t poke the bear.”

Moving to the merits, SCOV notes that the character and fitness process is designed to keep people who pose a risk to clients, the legal system, or the administration of justice from practicing law. The burden is on an applicant to establish good moral character.

SCOV recounts that the reviewing committee member was concerned that Mr. Anderson’s record demonstrated “(1) an inability to follow the law, (2) the possibility of a substance-abuse issue, and (3) ‘an inability to conduct himself professionally and in a manner that engenders respect for the law when in situations involving conflict.’” Despite these concerns, the panel certified Mr. Anderson’s good moral character.

SCOV notes that the Rules of Admission give the Committee broad—but not unfettered—discretion. The Rules require the Committee to “prepare a written decision setting forth its findings, conclusions, and recommendations.” SCOV reasons that the panel did not exercise its discretion in accordance with the Rules because it didn’t provide sufficient factual findings to support its decision to certify Mr. Anderson’s good moral character. While the panel was able to accept Mr. Anderson’s apparent lack of remorse and “flimsy” justifications for his behavior, SCOV is not.

SCOV reasons that Mr. Anderson’s pre-law-school conduct is less relevant to current character and fitness and cannot override his more recent behavior, which, the panel itself noted, could make it difficult for Mr. Anderson to “navigate the small and collegial community of Vermont lawyers and judges.” Though Mr. Anderson had numerous positive references, SCOV finds that those witnesses “are of minimal relevance in determining whether applicant’s ‘confrontational, combative, and insulting behavior’ in situations involving conflict would pose a risk to future clients or the legal system.”

SCOV notes that, ultimately, it must be convinced of an applicant’s good moral character, and having reviewed Mr. Anderson’s record, it finds it wanting. SCOV reasons: “Applicant’s prior conduct indicates a pattern of dishonesty and an inability to behave professionally in situations involving conflict that “reasonably demonstrates a likelihood to pose a risk to clients, the legal system, [and] the administration of justice.”

SCOV reasons that Mr. Anderson’s answers on his bar application indicate a pattern of dishonesty—because his recounting of events was short of being completely honest. SCOV focuses in on the pizza lawsuit here. In his application, Mr. Anderson alleged that the school wouldn’t reimburse him because he wasn’t able to provide an original receipt. There’s a little more to the story according to SCOV. See, it wasn’t that the school wanted an original receipt, the administration just wanted some kind of itemized receipt.

 Instead of obtaining a receipt, applicant filed a lawsuit. A few days later, applicant sent an email to the law school’s general counsel explaining that he filed a lawsuit, and could not understand the school’s strategy because there was no dispute that the school owed him the money and he would prevail on the merits. Applicant spoke with the general counsel on the phone that same day. During that phone call, general counsel told applicant that he would be reimbursed if he provided an itemized receipt. Applicant responded that he could get a receipt but chose not to because that would be “no fun.” Instead, applicant said he would bring an itemized receipt or affidavit to court so he could prevail on his case. 

General counsel sent an email explaining that he’d obtained an itemized receipt from the vendor and Mr. Anderson could pick up a check for the amount of the pizzas. General counsel further opined that Mr. Anderson’s approach was “disturbing” and explained that if Mr. Anderson was a lawyer, counsel would’ve made an ethical complaint. He listed potential violations of the Indiana Rules of Professional Conduct and told Mr. Anderson to “Consider this a lucky lesson learned.” Mr. Anderson wrote back that he rejected the offer. There’s more, but the bottom line is that SCOV finds “applicant’s description of this event on his bar application . . . inaccurate.”

SCOV reasons that Mr. Anderson’s flex here was not only strange, but troubling because it involved the legal system and he wasn’t honest about it. That creates a character and fitness double-whammy. Being truthful is one of the most important character traits for a member of the bar to have. SCOV reasons: “Judicial resources were spent litigating a frivolous claim that could have been resolved if applicant simply had provided an itemized receipt. His lack of candor regarding this incident is therefore especially relevant in assessing whether he possesses the good moral character to practice law.”

SCOV notes that throughout the character-and-fitness process Mr. Anderson’s reasons, explanations, and accounts for the lawsuit changed. Before the panel, Mr. Anderson said he’d never do such a thing again, but in his brief for SCOV, he argues that his conduct was justified. This is troubling to SCOV because Mr. Anderson repeatedly emphasizes the honesty and consistency of his answers in his application when—in SCOV’s view—that just isn’t the case. SCOV is especially concerned about the panel-to-appellate 180.

SCOV next turns to Mr. Anderson’s behavior in situations involving conflict. SCOV explains, in its view, “that when asked to do something he disagrees with, he becomes argumentative, confrontational, and often refuses to comply. In addition, applicant insists that his refusal to comply is justified, accuses others of misconduct, and/or alleges some kind of personal animus.” Because of this, SCOV reasons that “applicant’s prior conduct demonstrates that he would likely be unable to put his client’s interests first or respect the legal process.”

SCOV also mentions a couple incidents during law school—refusal to sign an Educational Benefit Agreement Form before registering for classes and the ensuing back and forth and an intellectual scuffle over having to complete a legal writing course to graduate—to illustrate Mr. Anderson’s patterns of behavior.

SCOV reasons, “While each of these instances alone could seem harmless, when taken together this law school conduct establishes a troubling pattern of behavior.” For example, “When informed he had to take a basic legal writing course, applicant alleged, among other things, that his writing professor was incompetent, lied about his absences, and had violated ABA regulations. And when asked to do something as simple as provide an itemized receipt, applicant filed a frivolous lawsuit.”

SCOV recounts the flag incident and notes the incident “demonstrates the same problematic behavior that applicant engaged in during law school. When asked to perform a basic task by a police officer, applicant questioned the validity of the order and refused to comply. Not only did he refuse to comply at the time of the incident, applicant has insisted throughout the character and fitness process that his action was justified.”

SCOV concludes: “In sum, we reverse the Committee’s decision certifying applicant’s good moral character. After conducting our own review of the record, we conclude that applicant has failed to demonstrate his good moral character to practice law for two reasons. First, applicant’s answers on the bar application and his conduct during the character and fitness process indicate a pattern of dishonesty. Second, the record indicates that in situations involving conflict, applicant would likely be unable to put his client’s interests first or respect the legal process.”

And so, SCOV denies Mr. Anderson’s application to the bar.

If you’ve read this far, thank you. This is a bit long in the tooth for a summary.

The following is solely my opinion and not official SCOV Law commentary.

I’ve said this before: in the character-and-fitness and disciplinary context, it’s rarely what you did that’s most important. It’s how you deal with it. The last thing you want to do in this situation is come up with a “clever” legal argument to justify lapses in judgment.

I’ve gone through the full character and fitness process four times for four different jurisdictions (as well as a couple federal courts). I have some skeletons in my closet from my misspent youth. I’m glad I have them because they carried some valuable lessons. The one reason those skeletons have never been a “bar to the bar” is that I’ve learned to take full responsibility for my past even when it hurts. In my opinion, it’s not enough to say that you accept responsibility for your past, you have to take it, internalize it, and above all, believe it. We all make mistakes. How we deal with them makes all the difference.

If you’re a Vermont judge, lawyer, or law student dealing with any substance or mental health issues—and you’d like some non-judgmental advice or just someone to listen—please reach out to the Lawyers Assistance Program. There’s help out there.