Apologies and Fitness to Practice Law: a Practical Framework for Evaluating Remorse in the Bar Admission Process

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1 37 Apologies and Fitness to Practice Law: a Practical Framework for Evaluating Remorse in the Bar Admission Process Mitchell Simon, Nick Smith and Nicole Negowetti* I. Introduction: an Overview of The Problem of Apologies in Character and Fitness II. A Review or The Varying and Inconsistent treatments of Apologies in Character and Fitness Cases III. The Meaning of Apologies IV. A Practical Framework for Expressing and Evaluating Apologies in Character and Fitness Cases V. Concluding Considerations Regarding The Purpose of Character and Fitness Review I. Introduction: an Overview of the Problem of Apologies in Character and Fitness Virtually all law students are aware of the bar exam requirement. 1 A less well-known requirement is that every state bar currently requires character certification as a prerequisite for bar admission. 2 Each state conducts its * Mitchell Simon is a Professor of Law at University of New Hampshire School of Law and Of Counsel to Devine, Millimet and Branch. He has written and spoken extensively on issues of professional responsibility. Nick Smith is an Associate Professor of Philosophy at the University of New Hampshire. He is the author of one of the leading books on remorse, I Was Wrong: The Meaning of Apologies (Cambridge University Press 2008) and a former law clerk to the United States Court of Appeals for the Third Circuit. Nicole Negowetti is an Assistant Professor of Law at Valparaiso School of Law, and a former law clerk to the New Hampshire Supreme Court. This article revises and expands on arguments Professors Smith and Simon have advanced in prior publications. 1. The standards for measuring intellectual fitness are generally uniform among the states, which typically require completing at least three quarters of a baccalaureate degree at an accredited college or university, graduating from an approved law school, and passing a bar examination. Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Refl ection Upon Bar Admissions, 39 Cal. W. L. Rev. 1, 11 (2002). For one innovative alternative to the exam requirement, see the Daniel Webster Scholar Program, which is a joint effort of the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and the New Hampshire Supreme Court. See John Burwell Garvey and Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke F. L. & Soc. for Law & Social Change 101 (2009). 2. See, e.g., Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 493 (1985); National Conference of Bar Examiners Comprehensive Guide to Bar _02Simon-1pass-r03.indd 37 2/1/ :20:20 PM

2 38 Journal of The Professional Lawyer own character investigations to determine whether an applicant is morally fit to practice law. 3 The procedures used to determine moral fitness to practice law vary in scope and substance from state to state. 4 Despite these differences, the most common method for determining whether a bar applicant possesses the requisite good moral character to practice law is for a bar or court appointed character committee to examine a variety of information regarding the applicant. 5 When applicants seek admission to the bar, they have placed their character at issue. 6 Therefore, the applicant bears the burden of producing information proving good moral character. 7 Information concerning the applicant primarily comes from standardized bar applications, interviews, and letters of recommendation. 8 The applications will ask questions concerning educational and employment history, finances, criminal and civil misconduct, mental health problems and addictions. 9 Essentially, bar character committees determine an applicant s good moral character by assessing all of the relevant facts before them. 10 If this preliminary character investigation reveals that the application is problematic in any way, heightened scrutiny by the bar admission committee is typically triggered. 11 An applicant who does not meet the state s standard of good character is provided a formal hearing. 12 At this hearing, the applicant has the right Admissions vii, III.7 (2009), available at Comp_Guide/2011_CompGuide.pdf [hereinafter NCBE Guide]. 3. Marcus Ratcliff, The Good Character Requirement: A Proposal For a Uniform National Standard, 36 Tulsa L.J. 487, 487 (2000). 4. Rhode, supra note 2, at 506; Ritter, supra note 1, at 14. For example, character investigations may be undertaken by a state bar association while the applicant is in law school, prior to sitting for the bar examination, or subsequent to successful completion of the bar examination. In most states, the bar association processes the application; however, in eleven states a separate agency evaluates character and fitness. NCBE Guide, supra note 2, at See Rhode, supra note 2, at Ratcliff, supra note 3, at NBE Guide, supra note 2, at viii. See, e.g. Minnesota Rules for Admission to the Bar R. 5B(2), ( The applicant bears the burden of proving good character in support of the application. ); Regulations of the Connecticut Bar Examining Committee Edition of 2008, Art. VI-3. Burden of Proof, available at ( The applicant bears the burden of proving his or her good moral character and fitness to practice law by clear and convincing evidence. ). 8. See Richard R. Arnold, Presumptive Disqualifi cation and Prior Unlawful Conduct: The Danger of Unpredictable Character Standards for Bar Applicants, 1997 Utah L. Rev. 63, 65 (1997). 9. See, e.g., Petition and Questionnaire for Admission to the Bar of New Hampshire, available at 10. Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 Notre Dame L. Rev. 67, 69 (1984). 11. Ritter, supra note 1, at See, e.g., Rules for Admission of Attorneys, Oregon Supreme Court R available at _02Simon-1pass-r03.indd 38 2/1/ :20:20 PM

3 Evaluating Remorse in The Bar Admission Process 39 to respond to the matters asserted or charged in the notice, including the right to present evidence and to question witnesses. 13 Once an applicant s conduct raises an issue of fitness to practice law, especially if prior misconduct involved unlawful acts, he or she may be obliged to demonstrate rehabilitation. 14 One significant factor in determinations of rehabilitation and fitness is whether the applicant expresses and demonstrates remorse. 15 Scholars have challenged the efficacy of evaluating an applicant s remorse for many years. Deborah Rhode argued that the use of remorse in admission cases is flawed because it is founded on a faulty empirical premise: That certain attitudes are sufficiently predictive of subsequent misconduct to justify the costs of the certification process. 16 One of this article s co-authors has argued that use of remorse in cases of youthful offenses fails to serve the underlying purpose of the process, and is likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors. Additionally, such inquiry muddies an already complex task and adds little, if anything, to the character and fitness committee s ability to access the applicant s candor during the process Id. at R. 9.35(6). 14. Application of G.L.S., 439 A.2d 1107, (Md. 1982). 15. See, e.g., id. at 1117 ( The applicant readily admitted that he himself was solely responsible for his participation in and commission of the crime. While he was unarmed and served only as the driver of the get-away car, he recognized no difference in the degree of culpability between himself and the other two persons involved in the crime. Thus the applicant admitted that his criminal acts were morally wrong and indefensible. ); Matter of Peterson, 439 N.W.2d 165, 169 (Iowa 1989) ( Without looking beyond Peterson s 1988 testimony, it becomes apparent that his initial descriptions of the 1976 incident as a technical and minor assault were attempts to mischaracterize the incident. This testimony displays a callous and indifferent attitude toward an explosive personal confrontation. ); Partin v. Bar of Ark., 894 S.W.2d 906, 909 (Ark. 1995) ( In particular, the Board majority is compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions. ). 16. Rhode, supra note 2, at Professor Rhode also criticized the general character system and wrote that the current administration of the moral character criteria is, in effect, a form of Kadi justice with a procedural overlay... The process is a costly as well as empirically dubious means of securing public protection. Id. at 584. See also Maureen M. Carr, 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, 373 (1995). ( In addition to problems in determining degrees of moral turpitude and wrongdoing, past offenses simply may not be a reliable gauge of present character. ). Further support for this conclusion can be found in a study of Virginia s revision of its parole system. The study found two factors that had some relationship to recidivism: prior felony drug convictions or prior adult incarcerations. However, it also found that a number of factors commonly used in the admission process-such as age at time of offense, were irrelevant. Interestingly, it found the only demographic factor that was potentially significant to differentiate recidivism among subgroups was gender, a factor that most would agree should not be used in bar admission decisions. See Brian J. Ostrom, et al. Offender Risk Assessment in Virginia 1 (2002). 17. Mitchell M. Simon, What s Remorse Got to Do, Got to Do with It? Bar Admission for Those with Youthful Offenses, Mich St. L. Rev. (forthcoming 2011) _02Simon-1pass-r03.indd 39 2/1/ :20:20 PM

4 40 Journal of The Professional Lawyer Nonetheless, courts have consistently looked to remorse as an admission factor, especially in cases of past criminal conduct. 18 A 1985 study of character and fitness decisions showed that in over one-half of the reported cases, the applicant s effort to atone or expressions of remorse for prior conduct was explicitly discussed. 19 Simon s review of reported cases between 1980 and 2009 involving bar applicants with youthful offenses confirmed this pattern. During this period, 59 out of 128 reported cases analyzed remorse as a decisional factor. 20 Interestingly, an applicant s willingness to express remorse is not often the key to a decision to admit the applicant, 21 but the unwillingness to express remorse has been seen by character and fitness committees and reviewing courts as disqualifying. 22 Perhaps more significantly, applicants refusal to express remorse, even in cases of sincerely held beliefs that they were wrongly convicted or that the 18. Rhode, supra note 2, at 544; In re Nathan, 26 So.3d 146, 147 (La. 2010) ( Petitioner knowingly forged the notary s signature on her bar application. This fact was not disputed by petitioner; rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because of the stress she was under at the time. ); Application of K.B., 434 A.2d 541, 545 (Md. 1981) ( It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case. ). 19. Rhode, supra note 2, at Simon, supra note 17. A number of the cases not explicitly discussing remorse turned either on alcohol and drug dependency, where remorse does not seem to be relevant, or lack of candor. See, e.g., In re Application of Corrigan, 915 N.E.2d 300, 303 (Ohio 2009) (focusing on the applicant s alcohol problems and his lack of candor with the Committee). Several of the lack of candor cases involve findings that the applicant was untruthful based on refusal to admit culpability, a concept that is related to remorse; Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) (finding lack of candor when applicant was unable to testify consistently about a plagiarism allegation). 21. See, e.g., In re Application of Grachanin, 912 N.E.2d 1128, (Ohio 2009) (finding that while applicant deserves credit for expressing remorse, he needs more time to demonstrate that his drinking problems are under control); Martin B. v. Comm. of Bar Examiners, 661 P.2d 160, 161(Cal. 1983) ( The State Bar Court also found the 1973 false claim conviction to be indicative of bad moral character, despite petitioner s free admission of guilt and expression of remorse. ). But see In re Application of Simmons, 584 N.E.2d 1159, 1160 (Ohio 1992) ( We have reviewed the record in this case and are particularly struck, as the board was, with this applicant s forthright confession of and testimony about his misconduct. However, unlike the board, we are satisfied with Simmons regret and renewed commitment to the standards manifested by the Code of Professional Responsibility and, therefore, find nothing to be gained by allowing another year to pass before Simmons may apply for the bar examination. ). 22. See, e.g, Application of Walker, 539 P.2d 891, 897 (Ariz. 1978) (denying admission for failing to make disclosure of failure to register for the draft and for claiming that these acts did not reflect on his character); Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying applicant for his continued insistence on his innocence of charges for which he had been convicted); In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) (Lunberg Stratton, J. dissenting) ( Had he admitted to his deceptive acts, I would agree with the majority. But... his refusal to accept the responsibility for these misdeeds demonstrates a deeper character flaw that cannot be cured by time.... A lawyer must be honest, ethical, and above reproach. Panepinto clearly has none of these qualities. Therefore, I would permanently deny his application to take the bar exam. ) _02Simon-1pass-r03.indd 40 2/1/ :20:20 PM

5 Evaluating Remorse in The Bar Admission Process 41 law/norm that they violated is unjust, often leads to a finding of lack of candor-one of the most damning factors in bar admission cases. 23 In light of the importance of remorse in the character and fitness process and the difficulty committees and indeed all of us face in interpreting the meaning and value of apologetic gestures, this article develops specific guidelines that committees can use to evaluate a bar applicant s remorse. Section II provides examples of the inconsistent treatment of apologies and remorse in the character and fitness context. Such impressionistic and ad hoc determinations, we believe, often misunderstand and poorly serve the purposes of the review process. Section III explains the confusing and often contradictory meanings conveyed by apologies and how legal contexts further complicate the functions and values expressed by remorse. Adversarial legal environments, we explain, are not a natural habitat for repentant gestures like remorse and apology. Following Nick Smith s theory of the categorical apology as defended in I Was Wrong, 24 Section IV then enumerates thirteen questions that should guide review boards as they evaluate the apologies and remorse of bar applicants. Such principles, we believe, will concentrate the reviewer s attention on the variables most salient to evaluating the quality of the applicant s remorse. We argue that such a principled framework can lend rigor and consistency to the review process, which will, in turn, better serve both the bar and applicants to the bar. We conclude by cautioning review committees against understanding an applicant s remorse as serving retributive ends. The primary justification for the bar s moral character requirement is to protect the public, and reviewers should not understand the process as punitive in nature. If some forms of wrongdoing effectively ban applicants from bar admission, we argue, state courts and the National Council of Bar Examiners should name these offenses explicitly. II. A Review of the Varying and Inconsistent Treatments of Apologies in Character and Fitness Cases In evaluating whether an applicant seeking bar admission has demonstrated good moral character and fitness to practice law, 25 character and fitness committees consider positive characteristics such as whether the applicant is able to use good judgment on behalf of clients, to act diligently and reliably in fulfilling one s obligations, to use good judgment in financial dealings, and to comply with deadlines and time constraints. 26 Misconduct in one s past, such as committing criminal acts, demonstrating financial irresponsibility, or violating academic honesty standards, can be grounds for disqualification See Partin, 894 S.W.2d at ; In re Childress, 561 N.E.2d 614 (Ill. 1990); Hallinan v. Comm. of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966); Siegel v. Comm. of Bar Examiners, 514 P.2d 967 (Cal. 1973). 24. Nick Smith, I Was Wrong: The Meanings of Apologies (2008). 25. N.H. S. Ct. R. 42B (III). 26. N.H. S. Ct. R. 42B (VI). 27. N.H. S. Ct. R. 42B (VII). The National Conference of Bar Examiners has also set forth a list of conduct that warrants further investigation. The list includes: [U]nlawful conduct, academic _02Simon-1pass-r03.indd 41 2/1/ :20:20 PM

6 42 Journal of The Professional Lawyer To evaluate the effect of the misconduct upon the applicant s present character and fitness, committees consider various factors in assigning weight and significance to the individual s prior conduct. These include factors such as the age at the time the conduct occurred, the seriousness of the conduct, the circumstances under which the conduct occurred and its underlying factors, evidence of rehabilitation, the applicant s candor, positive social contributions made by the applicant since the conduct, and the materiality of any omissions or misrepresentations made by the applicant. 28 The Character and Fitness Guidelines of several jurisdictions emphasize that remorse is a significant factor to consider when evaluating whether an applicant has demonstrated rehabilitation. 29 For example, as set forth in the New Hampshire Supreme Court Rules, establishing sufficient rehabilitation will usually require the applicant to recognize, appreciate, show insight into, and have genuine remorse for the seriousness of his or her disqualifying conduct. Attempts to deny, rationalize, minimize or explain away disqualifying past behavior will usually result in the Committee finding insufficient rehabilitation. 30 Similarly, in evaluating an applicant s current fitness to practice law, the Pennsylvania Board of Bar Examiners considers evidence of rehabilitation including candor and remorsefulness of the applicant before the Board, acceptance of responsibility for and renunciation of past misconduct, and lack of malice and ill feeling toward those who disclosed the misconduct or initiated proceedings related thereto. 31 The following cases provide a sample of how courts treat remorse in the context of bar admission. While each evaluated whether applicants with histories of misconduct, making of false statements, including omissions, misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial responsibilities, neglect of professional obligations, violation of an order of a court, evidence of mental or emotional instability, evidence of drug or alcohol dependency, denial of admission to the bar in another jurisdiction on character and fitness ground, disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction. NCBE Guide, supra note 2, at viii, III, See N.H. S. Ct. R. 42B (III). 29. See, e.g., Washington State Court Rules, APR 24.2(b)(9)(v): When determining whether past conduct disqualifies an applicant from admission to the Bar, the Character and Fitness Board considers evidence of rehabilitation, such as the Applicant s attitude toward the misconduct, including without limitation acceptance of responsibility and remorse. ; Regulations of the Connecticut Bar Examining Committee, Art. VI-5(c)(ix), When an applicant s past conduct raises a question as to his/her character and fitness, the Committee will take into consideration factors such as evidence of remorse.; North Carolina Board of Law Examiners Character and Fitness Guidelines, An applicant who asserts rehabilitation from prior misconduct which bears adversely upon the applicant s character and fitness shall be required to produce clear and convincing evidence of such rehabilitation, which may include... Applicant s current attitude about prior offenses (acceptance or responsibility and renunciation of past wrongdoing and remorse). 30. N.H. S. Ct. R. 42B (VI). 31. Pennsylvania Board of Law Examiners Bar Admissions Information Handbook 13, available at _02Simon-1pass-r03.indd 42 2/1/ :20:20 PM

7 Evaluating Remorse in The Bar Admission Process 43 misconduct demonstrated sufficient evidence of rehabilitation to warrant admission, their analyses differ considerably. A. Demonstrating Sufficient Rehabilitation to Allow Admission In a 2000 decision, the District of Columbia Court of Appeals reviewed the recommendation of its Committee on Admissions ( Committee ) to deny Roger Lindmark s admission to the District of Columbia Bar. 32 The Committee s recommendation was based primarily on Lindmark s conduct during the Pennsylvania Bar admissions process. 33 However, finding that he demonstrated regret for his past misconduct, the Court granted Lindmark s application. 34 In 1990, Lindmark applied to take the Pennsylvania Bar after failing to pass the California Bar several times. 35 The Pennsylvania Bar of Examiners refused to permit him to take the Bar, finding that his past and present behavior was incompatible with the standards expected to be observed by members of the Bar. This finding was based on his law school disciplinary probation and his assertions that his actions were proper. 36 During law school in 1982, Lindmark was subjected to disciplinary probation in connection with his effort to appeal a grade and obtain employment. 37 The dean of the law school he attended charged Lindmark with making false allegations and statements. 38 In response, Lindmark filed two lawsuits against the law school, and was physically removed from the dean s office after disputing a decision disallowing a course credit. 39 After successfully passing the California Bar and being admitted to practice in that state, the Pennsylvania Supreme Court granted his petition for reconsideration and ordered the Board of Law Examiners to allow him to take the Bar examination. 40 After passing the exam on his first attempt, Lindmark wrote two letters to the Pennsylvania Board, referring to the most unprofessional, insidious and despicable harassment and treatment your Board has inflicted upon me. 41 The Pennsylvania Board denied Lindmark s Bar admission, citing his intemperate and unprofessional conduct, including unfounded accusations against the Board. 42 The District of Columbia Review Committee considered the proceedings before the Pennsylvania Board as well as Lindmark s law school discipline. The Committee denied his application and stated: 32. In re Lindmark, 747 A.2d 1148, 1149 (D.C. 2000). 33. Id. 34. Id. at Id. at 1149, n Id. 37. Id. at 1150, n Id. 39. Id. 40. Id. 41. Id. 42. Id _02Simon-1pass-r03.indd 43 2/1/ :20:20 PM

8 44 Journal of The Professional Lawyer Mr. Lindmark... refused to recognize that his actions were wrong, even after a judge ruled that the dean s factual allegations were true. Instead, his testimony sought to evade the issue, as he repeatedly (and unconvincingly) claimed not to be able to identify the factual statements to which the Court referred. His lack of candor about the Court s ruling shows that his ability to confront unfavorable findings about his own conduct remains problematic. Moreover, his efforts to dismiss the incidents that led to his disciplinary probation as the equivalent of a parking ticket betray a fundamental lack of appreciation for the seriousness of his lies. 43 Thus, the Pennsylvania Board and District of Columbia Review Committee agreed: Lindmark lacked remorse and was unfit for admission to the bar. In considering Lindmark s case, the D.C. Court of Appeals noted that we have granted admission in the past where a long period of time has elapsed since the applicant s bad behavior, and the record contains evidence of rehabilitation and remorse. 44 The Court found that in light of the passage of time and Lindmark s more favorable recent record, 45 we conclude that his most unfortunate conduct as a law student and as an applicant for admission to the Bar of Pennsylvania does not warrant denial of his current application. 46 Noting that during oral argument he admitted that his letter to the Pennsylvania Bar was intemperate, [and] a dumb thing to do and that he expressed regret for the unprofessional and inappropriate words he used in his letters to the Pennsylvania Board, the Court granted Lindmark s application for admission. 47 Thus, despite a record of misconduct that included hostility toward the dean of his law school and intemperate accusations directed against the Pennsylvania Board of Law Examiners, the D.C. Court of Appeals Committee on Admissions found Lindmark s mere description of his previous actions as a dumb thing to do apparently carried considerable weight. A few contrite words from the applicant appear to have led the Court to disagree with the findings of both the District of Columbia Review Committee and the Pennsylvania Board of Law Examiners and find the applicant remorseful and rehabilitated. We can begin to appreciate here the rather and vague and inconsistent precedents available to reviewing committees. B. Rehabilitation Not Established 1. Severity of the Crime Outweighs Rehabilitation In another District of Columbia Court of Appeals decision, the Court denied bar admission to an applicant who had been convicted of a felony, finding that the 43. Id. at Id. at In support of his application for admission, Mr. Lindmark submitted eighteen letters of reference attesting to his good character and status of good standing as a member of the California Bar. Id. at Id. 47. Id. at _02Simon-1pass-r03.indd 44 2/1/ :20:20 PM

9 Evaluating Remorse in The Bar Admission Process 45 applicant had not reformed himself to the point that he now possesses the good moral character required for admission to the Bar. 48 John Dortch was convicted in 1975 of second-degree murder, attempted armed robbery, and conspiracy. 49 In 1974, Dortch was a married twenty-nine year old college graduate and Vietnam veteran. 50 He started his own insurance business with the help of investors. 51 When the business failed, Dortch hatched a bizarre plot to repay his investors with the proceeds of a bank robbery. 52 To carry out this plot, Dortch enlisted at least six confederates from among his business or social acquaintances. 53 Dortch and a co-conspirator drove to the vicinity of the savings and loan. 54 Disguised as construction workers, the pair carried a tool bag containing sawed-off shotguns and other firearms that Dortch had supplied. 55 Unbeknownst to Dortch, the police had been tipped off and were waiting for them. 56 Two plainclothes officers stopped them on the street when they exited their car and directed Dortch to bring the tool bag to a police cruiser parked nearby. 57 Dortch removed one of the sawedoff shotguns and approached the police cruiser with it. 58 An officer reached for the weapon and it accidentally discharged. 59 Although no one was injured, Dortch and his accomplice fled in opposite directions. 60 One of the officers fired shots at the fleeing suspects. 61 According to the officers testimony at the subsequent trial, Dortch turned and fired back. 62 Dortch discarded his construction-worker uniform and escaped without further incident. 63 Later that day, however, Dortch learned that his accomplice had shot and killed Police Officer Gail Cobb, who had confronted the accomplice in a parking garage as he was removing his disguise. 64 The following morning, Dortch surrendered himself to the police. 65 He pled guilty to second-degree murder, attempted armed robbery and conspiracy and was sentenced to concurrent sentences of fifteen years to life in prison on the first two charges and five years in prison on the conspiracy charge. 66 The Court rejected 48. In re Dortch, 860 A.2d 346 (D.C. 2004). 49. Id. at Id. at Id. 52. Id. 53. Id. 54. Id. 55. Id. 56. Id. 57. Id. 58. Id. 59. Id. 60. Id. 61. Id. 62. Id. 63. Id. 64. Id. 65. Id. 66. Id. at _02Simon-1pass-r03.indd 45 2/1/ :20:21 PM

10 46 Journal of The Professional Lawyer Dortch s request for probation. 67 He filed two unsuccessful motions to reduce his sentence and three successive, unsuccessful motions to withdraw his guilty plea or set aside his sentence. 68 Among other things, Dortch alleged that he was coerced and misled into tendering an involuntary and incompetent guilty plea. 69 He also claimed that had decided not to proceed with the robbery and was returning the bag of firearms to his car when the police stopped him. 70 He asserted that if the police officers had not overreacted, Officer Cobb would be alive today. 71 Only a few months after his release from prison, Dortch applied for admission to the District of Columbia Law School. 72 He disclosed his criminal record on his application in response to a question that asked him to describe a specific personal experience in which he was subjected to or witnessed some significant form of injustice. 73 Dortch answered this question by depicting his own prosecution as an injustice, an abortion of justice that he had suffered. 74 The District of Columbia Law School accepted Dortch as a student. 75 He performed well in law school and was awarded the Dean s Cup for outstanding community service, was elected president of the Student Bar Association, and was selected by his classmates to deliver the 1994 law school commencement address. 76 Following graduation, Dortch served as an adjunct professor at the law school and worked as a paralegal in a law firm. 77 In the fall of 1998, Dortch began working with the Time Dollar Youth Court, a diversion program for first-time juvenile offenders. He eventually became the director of the program. 78 In 2001, Dortch was 67. Id. 68. Id. 69. Id. 70. Id. 71. Id. 72. Id. at Id. at Id. In his law school application, Dortch wrote: I am an ex-offender, and I have witnessed and experienced improprieties in the administration of justice. By virtue of a guilty plea, I was convicted of second degree murder, attempted bank robbery, and conspiracy, and I served fifteen years in prison. I did not kill anyone nor did I attempt to kill anyone nor was I present at the scene of the homicide, but the alleged factual basis for my plea was predicated upon the felony murder concept, which stipulates that each conspirator is equally accountable for every and anything that transpires in the furtherance of a felony, even though he may not participate in the overt act. The injustice that I suffered was at the hands of both the defense counsel, whom I paid in advance, and the prosecution, which condoned, if not encouraged, the perjurious testimonies of the complaining officers. However, I am not bitter, because I did break the law, but not to the extent to which I was charged and prosecuted. The bottom line is that I did break the law, and had not I broken the law, I would not have been vulnerable to an abortion of justice. 75. Id. 76. Id. 77. Id. 78. Id _02Simon-1pass-r03.indd 46 2/1/ :20:21 PM

11 Evaluating Remorse in The Bar Admission Process 47 appointed Director of the Violence Free Zone Initiative of the National Center for Neighborhood Enterprise. 79 In 1995 and 1996, Dortch passed bar examinations in the District of Columbia, Maryland, and West Virginia, and he applied for admission to the bar in all three jurisdictions. 80 In so doing, Dortch fully disclosed his criminal convictions. 81 While Dortch emphasized on his application in the District of Columbia that I neither killed anyone nor was I at the scene where the homicide took place, he readily acknowledged that he had orchestrated a conspiracy to commit an armed robbery. 82 Dortch also expressed his contrition in his live testimony before the Admissions Committee ( Committee ), which concluded that he appeared sincere in expressing remorse and in accepting responsibility for his criminal actions. 83 The Committee did not explain the factors used to evaluate Dortch s sincerity. The Committee held Dortch s application in abeyance pending the outcome of the Maryland and West Virginia proceedings. 84 In January 1997, the Court of Appeals of Maryland rejected Dortch s application as premature because he had not yet been released from parole. 85 A few months later the Supreme Court of Appeals of West Virginia denied Dortch s application on its merits. 86 Although the Court acknowledged Dortch s candor in admitting his guilt and responsibility in the death of Officer Cobb and other evidence demonstrating that Dortch may have been rehabilitated,... the horrendous crime of which he was the prime conspirator outweighs his present good deeds. 87 Following the decisions in Maryland and West Virginia, and after conducting three days of hearings, the Committee in the District of Columbia was unanimous in concluding that Mr. Dortch had not met his burden of proof and in recommending that his application be denied. 88 In reviewing the Committee s recommendations, the D.C. Court applies a totality of circumstances test of whether the applicant, at time of application, had the good moral character necessary for admission to the Bar. 89 To evaluate the moral fitness of applicants with criminal backgrounds, the Court considers the following rehabilitation factors: 1. The nature and character of the offenses committed. 2. The number and duration of offenses. 79. Id. 80. Id. at Id. 82. Id. 83. Id. 84. Id. 85. Id. 86. Id. 87. Id. at 353 (citing In re Dortch, 486 S.E.2d 311, 321 (W. Va. 1997)). 88. Id. at Id. (citing In re Manville, 538 A.2d 1128, 1132 (D.C.1988) (en banc) ( Manville II )) _02Simon-1pass-r03.indd 47 2/1/ :20:21 PM

12 48 Journal of The Professional Lawyer 3. The age and maturity of the applicant when the offenses were committed. 4. The social and historical context in which the offenses were committed. 5. The sufficiency of the punishment undergone and restitution made in connection with the offenses. 6. The grant or denial of a pardon for offenses committed. 7. The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period. 8. The applicant s current attitude about the prior offenses (e.g., acceptance of responsibility for and renunciation of past wrongdoing, and remorse). 9. The applicant s candor, sincerity and full disclosure in the filings and proceedings on character and fitness. 10. The applicant s constructive activities and accomplishments subsequent to the criminal convictions. 11. The opinions of character witnesses about the applicant s moral fitness. 90 The Court was guided by the principle that the more serious the misconduct, the greater the showing of rehabilitation that will be required.... [and] in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make. 91 The Court concluded that the first four factors weighed heavily against Dortch. 92 As the Court explained, [t]his case is not about the forgivable foibles of an applicant s callow youth.... Rather, the opposite is the case: Dortch was twenty-nine years old, married, a father, a college graduate, a Vietnam veteran, and an experienced and accomplished businessman. Dortch s moral character was not still in formation, and he was not without adequate resources to choose from a variety of paths of conduct other than the fatal path he selected. 93 As to the fifth factor, the Court considered the sufficiency of Dortch s punishment and his efforts to make restitution for his wrongdoing. 94 Assuming that Dortch s fifteen-year prison sentence adequately reflected the severity of his offense, the Court focused on the fact that: [I]n all the years since his conviction, Dortch has done nothing tangible to help, nor has he offered to help, those still living whom he permanently and deeply harmed by his criminal enterprise: Officer Cobb s family, his confederates, and their families. We appreciate that extending such help might have entailed special effort and even personal sacrifice on Dortch s part. That is one of the reasons why it would have been a meaningful thing to do. It is easy to express remorse, but substantiation of that remorse through acts of restitution seems appropriate in a situation such 90. Id. at 356 (citing Manville II, 538 A.2d at 1133 n. 4). 91. Id. at 357 (quoting In re Matthews, 462 A.2d 165, 176 (N.J. 1983)). 92. Id. at Id. 94. Id _02Simon-1pass-r03.indd 48 2/1/ :20:21 PM

13 Evaluating Remorse in The Bar Admission Process 49 as this one. Dortch s failure to make restitution undermines his claim of moral regeneration. 95 Regarding the sixth and seventh factors, the Court noted that although Dortch had not engaged in any misconduct in the thirty years since the failed armed robbery, [p]assage of time alone is insufficient to warrant admission. 96 Analyzing the eighth and ninth factors, the Court considered Dortch s current attitude about his offenses, his acceptance of responsibility, renunciation of past wrongdoing, remorse, and his candor, sincerity and full disclosure in the admission proceedings. 97 The Court noted that the Committee heard directly from Dortch, questioned him, and ultimately credited his current statements of responsibility and remorse. 98 It is unclear whether he explicitly accepted blame for the murder as well as the attempted robbery. Nevertheless, the Court expressed its remaining doubts about the depth and consistency of Dortch s acceptance of responsibility and remorse. 99 Again, the Court emphasized the fact that Dortch did not attempt to help Officer Cobb s family or to atone to the accomplices whom he enticed into joining his criminal plot. 100 It also noted that we are taken aback by the disingenuous and self-justifying statements that Dortch made, in moving to withdraw his guilty plea and in applying to law school, such as his characterization of his conviction as an abortion of justice. 101 Using its honest discretion and rational good judgment to evaluate the totality of the circumstances, the Court noted that [w]e possess no supernatural ability to look into an applicant s heart. Rather, we must divine what we need to know from the applicant s actions and outward manifestations. 102 Given the extremely damning character of his crimes, the Court determined that Dortch had the burden to make an exceptionally compelling showing of his full and complete rehabilitation to assure the Court of his present good moral character. 103 The Court concluded that Dortch did not make so compelling a showing. 104 In denying his application, the Court explained that Dortch failed to demonstrate a substantial record of personal sacrifice, outstanding service to others, or similar expiative and ethical behavior on Dortch s part that would tend to confirm his indisputable moral regeneration. 105 Rather, Dortch s failure to make restitution to offer help, for 95. Id. 96. Id. at Id. at Id. 99. Id Id Id Id. at Id Id Id _02Simon-1pass-r03.indd 49 2/1/ :20:21 PM

14 50 Journal of The Professional Lawyer example, to Officer Cobb s surviving family seriously undermines his claim that he is fully rehabilitated. 106 In an Arizona case involving a similarly serious crime attempted murder the Court refused to admit an applicant, despite considerable evidence of rehabilitation. 107 In 1977, Lee Keller King, a peace officer, was upset because he had been passed over for a full-time deputy constable position. 108 While off duty and out of uniform, King went to a neighborhood bar, became highly intoxicated and argued with two male acquaintances. After leaving the bar, King used his semiautomatic service weapon to shoot each man several times at close range. 109 Both victims survived. 110 After serving a suspended prison sentence, King graduated from college and law school, passed the Texas bar examination, and was found to possess the requisite good moral character to practice law in Texas in He practiced law in Texas without incurring any disciplinary charges, he married, adopted his wife s child, and the couple had two additional children. 112 In 2003, King moved to Arizona to work in his law firm s Phoenix-area office. He passed the Arizona bar examination and submitted his Character and Fitness Report to the Committee on Character and Fitness. 113 After conducting an evidentiary hearing, the Committee recommended that the Court deny King s application for admission. 114 The Committee concluded that although King had presented strong evidence of rehabilitation and positive social contributions since the shootings, the Committee was unable to overlook the seriousness of his crime. 115 King obtained counsel and re-applied six months later to the Committee. This Committee, which had changed members, recommended King s admission to the bar, without issuing an opinion explaining its decision. 116 In its evaluation of King s application, the Arizona Court explained that the burden of demonstrating complete rehabilitation is determined by the gravity of the past criminal conduct. The more serious the unlawful act, the greater the burden. 117 Because King s misconduct tips the scales against admission at the outset, he must produce an extraordinary amount or quality of evidence to meet his burden of proof. 118 Therefore, to prove complete rehabilitation, King must 106. Id In re King, 136 P.3d 878 (2006) Id. at Id Id Id. at Id Id Id Id Id Id Id _02Simon-1pass-r03.indd 50 2/1/ :20:21 PM

15 Evaluating Remorse in The Bar Admission Process 51 establish that he has both (1) accepted responsibility for his past criminal conduct, and (2) identified and overcome the weakness that led to the unlawful conduct. 119 The Court found that evidence in the record both supported and negated King s contention that he has accepted responsibility for the 1977 shootings. 120 King demonstrated his acceptance by informing judges, lawyers, law professors, former employers, friends, acquaintances, and colleagues of his crime over an extended period of time, impressing upon many of them heartfelt feelings of remorse and in both hearings before the Committee, King admitted shooting the victims and expressed remorse, calling the shootings a mistake I made that I will carry with me for the rest of my life. 121 However, the Court also found that in his written applications for admission to law school, to the Arizona Bar, and the Court, King minimized his personal responsibility for the shootings by explaining that due to the lack of any witnesses, his strained emotional state, and anti-police sentiment, it was in his best interests to plead guilty to one charge and throw [himself] on the mercy of the Court rather than to attempt to clear [himself] in a jury trial. 122 The Court was left with the impression that King intended his readers to infer that he had a defense to the shootings but chose to plead guilty to one charge after weighing his chances for success. It concluded that King expressed no remorse and that his excuses were inconsistent with the notion of acceptance of responsibility. 123 The Court also determined that King failed to satisfy the second prong of the rehabilitation test identifying the weakness that caused him to engage in criminal misconduct and then demonstrating that he has overcome that weakness because nothing illuminates why King lacked appropriate skills to cope with stress or abused alcohol during the pertinent period of his life. Without such knowledge, we cannot be assured that King has appropriately addressed and overcome the weakness leading to his criminal misconduct. 124 Thus, the Court refused to adopt the Committee s recommendation that King be admitted to the Bar. 2. Lacking Remorse a Clear Case Lack of remorse and failure to accept responsibility for misconduct was clearly the basis of the Georgia Supreme Court s denial of Willie Jay White s bar application. White had intentionally submitted a wholly plagiarized paper in his advanced torts class at the end of his second year of law school. 125 During an investigation, which included informal interviews with White, the Board to Determine Fitness of Bar Applicants ( Board ) became concerned with White s lack of candor during the fitness application process. 126 Because White refused to fully explain his 119. Id. at 883 (citations and quotations omitted) Id Id Id Id. at Id. at In re White, 656 S.E.2d 527, 528 (Ga. 2008) Id. at _02Simon-1pass-r03.indd 51 2/1/ :20:21 PM

16 52 Journal of The Professional Lawyer conduct to the Board, despite multiple opportunities to do so, White s certification of fitness to practice law was tentatively denied. 127 At a formal hearing that White requested, he again failed to offer any credible explanation for his plagiarism and despite the overwhelming evidence to the contrary, was either unwilling or unable to admit that he deliberately reproduced sections of five previously published works and submitted it as his own work. 128 The Court agreed with the hearing officer s determination that White s explanation of the plagiarism incident was not credible, that he had not yet accepted full responsibility for his actions, and that he did not currently possess the character and fitness required of a prospective member of the State Bar. 129 The Court concluded that White had failed to offer a plausible explanation of his actions. As a result, he has never accepted full responsibility for what he did, and he has not yet been rehabilitated A Court Divided In a more difficult decision, a divided Illinois Supreme Court reviewed the request for bar admission of an applicant, Jerome Krule, who had been convicted of insurance fraud. 131 The majority ultimately denied the application, finding that Krule s proof of good character and remorse did not outweigh the gravity of his past conduct. 132 However, in a dissenting opinion, one judge opined that the applicant had sufficiently demonstrated rehabilitation. 133 Krule graduated from law school in 1994 and in 1995 the Committee on Character and Fitness voted not to recommend his admission to the Illinois Bar. 134 This decision was based on Krule s involvement in an insurance fraud scheme, which resulted in a felony conviction in The Committee determined that Krule was not candid in describing his involvement in the scheme, that he did not demonstrate his rehabilitation, and that he lacked candor in failing to inform his law school of three previous misdemeanor convictions. 136 During a hearing before the Committee in 1999, Krule testified that he had played a major role in the fraud scheme and expressed remorse for his illegal conduct and failure to report the misdemeanor convictions when he applied to law school. 137 He presented seven character witnesses, including a judge, who testified that Krule spoke with agonizing candor about his past difficulties, that he acknowledged he made serious mistakes in his past, and that he showed a great deal 127. Id. at Id. at Id Id In re Krule, 741 N.E.2d 259 (Ill. 2000) Id. at Id. at Id. at Id Id Id. at _02Simon-1pass-r03.indd 52 2/1/ :20:21 PM

17 Evaluating Remorse in The Bar Admission Process 53 of remorse for his past misconduct. 138 The witnesses also testified to Krule s community service with the Evanston Community Defender Office, which provided free legal and social work services to low income residents under the age of 21 and with a local school district, where he served as a volunteer tutor. 139 In evaluating Krule s application, the Court stated that Krule professed that he was sorry and had changed, but the Committee believed that his words and actions may have been designed simply to satisfy the requirements of bar admission. Moreover, to the extent Krule was remorseful, the Committee believed that it may have been remorse that his conduct interfered with his bar admission rather than a genuine appreciation for how his illegal conduct affected others. 140 The Court was concerned that Krule committed fraud when he was an adult in the context of circumstances comparable to those he might face as an attorney. 141 Therefore, the Court concluded that Krule s past conduct evinced an inability for him to carry out his professional responsibilities honestly. 142 It further determined that [a]s impressive as Krule s character references and public service may be, an applicant s subsequent exemplary behavior cannot lessen the enormity of an earlier offense. 143 In denying his application for admission, the Court found that Krule had failed to persuade it that he would not repeat his conduct, and therefore, admission would deprecate the seriousness of his crime. 144 In a separate concurrence, one judge cited a 1990 case in which an applicant who had been convicted of rape and robbery 16 years earlier applied for admission to the Illinois Bar long after his release from prison. Observing that a felony conviction will not automatically preclude an applicant s admission to the bar, the Court explained: It is clear, however, that the degree of rehabilitation that must be established to warrant admission... will depend in large measure on the nature of the wrong committed. Just as a disbarred attorney s subsequent exemplary behavior will not mitigate the seriousness of his misconduct, so too will an applicant s subsequent exemplary behavior fail to lessen the enormity of an earlier offense. 145 The concurrence delineated the considerations in this case that he deemed most relevant: 138. Id. at , Id. at Id. at Id Id Id. at Id Id. at 266 (citations omitted) _02Simon-1pass-r03.indd 53 2/1/ :20:21 PM

18 54 Journal of The Professional Lawyer The petitioner was involved in an extensive, fraudulent scheme, and he played an active role in the commission of those offenses. Moreover, the petitioner was 45 years old at the time of his involvement; thus, his offenses were not youthful indiscretions, but the work of a mature adult, and they were closely related to what was then his career in insurance. Also, the petitioner, who applied to and was accepted by his law school after these offenses, was not completely candid to the school about this misconduct and, separately, failed to report on his law school application three prior misdemeanor charges, two of which resulted in guilty pleas. 146 In a dissent from the majority s opinion, one judge questioned: What more could [Krule] have done that he did not already do to enable him to be allowed the privilege to practice law? Stated otherwise, is there anything petitioner failed to do to justify refusing him a license to practice law. The majority does not answer this essential question. Instead, in denying Krule s admission application, my colleagues appear to singlemindedly focus upon the seriousness of petitioner s past offense, to the virtual exclusion of the ample amount of positive evidence presented in petitioner s favor during the Committee hearing. 147 Noting that [i]t is axiomatic that the seriousness of petitioner s crime remains constant, the dissenting judge explained that: It is precisely because the gravity of the offense will be the same 10, 15, or 20 years henceforth and forevermore that this Court has looked to factors in addition to the seriousness of the crime committed to determine whether an applicant has been sufficiently rehabilitated to be admitted to the practice of law. In other words, we must consider the seriousness of petitioner s offense against the backdrop of the various indicia of rehabilitation of character and fitness. The egregious conduct of petitioner, though deserving of considerable weight, should not be the overriding factor in assessing petitioner s fitness to practice law. The judge noted that on several occasions during his hearing, Krule expressed remorse for his past misconduct. 148 Krule testified that he had moved in every possible direction to correct that type of behavior and to make sure that it won t happen again. 149 According to Krule, his motivation for cooperating with the authorities during the insurance scheme prosecution was to try and correct some of the harm that I did and put an end to it also. 150 He also stated that by performing 146. Id Id. at Id. at Id Id _02Simon-1pass-r03.indd 54 2/1/ :20:21 PM

19 Evaluating Remorse in The Bar Admission Process 55 his present volunteer community service, I ve tried to correct what I did or do what I can to correct what I did. 151 Although petitioner stated that he realized that he cannot erase his past misconduct, he testified that I can do everything in my power to change myself, which I have tried to do, tried to grow and develop in another direction totally, and I m very sorry for what I did. 152 The dissenting judge criticized the majority for its unsupported and speculative conclusions with respect to the motivation and sincerity of Krule s candor in acknowledging responsibility for his role in the insurance scheme and his remorse for his past misconduct. 153 In conclusion, the judge remarked: The decision of the majority to deny petitioner s application, despite the fact that the record contains substantial, uncontradicted evidence of petitioner s rehabilitation and present good moral character and fitness to practice law, leads me to the conclusion that, in this case, the majority has determined that regardless of the amount of positive evidence presented in petitioner s favor, the nature of petitioner s offense automatically precludes his admission to the bar Does Remorse Really Matter? Ohio s Inconsistent Treatment of Remorse Remorse and acceptance of responsibility were significant factors in two Ohio Supreme Court cases. While the Court reached the same decision in both cases, its analysis regarding remorse was entirely inconsistent. In 1999, Alexander Bagne was denied admission to the Michigan Bar because he did not consistently account for a crime he committed in When he was 19 years old, Bagne was accused of shooting a jogger in the neck with a BB gun while he and a friend were joy riding and Bagne shot the BB gun randomly from the passenger side of the car. 156 Bagne insisted that the shooting was accidental. 157 The Michigan Board of Law Examiners ( Board ) doubted Bagne s credibility and candor during three separate character and fitness hearings. 158 The Board found that Bagne appeared to be willing to say anything for the sake of approval and attempt[ed] to create false impressions as to the seriousness of and his responsibility for his crime. 159 The Board was particularly troubled by a change in Bagne s testimony during the third hearing, when he proposed for the first time that the driver of the car, who had died before the hearing, might actually have fired the shot that struck the 151. Id. at Id. at Id. at Id. at In re Application of Bagne, 808 N.E.2d 372, 373 (Ohio 2004) Id. at Id. at Id Id _02Simon-1pass-r03.indd 55 2/1/ :20:21 PM

20 56 Journal of The Professional Lawyer jogger. 160 During a hearing, Bagne corrected his own witness as to the degree of his responsibility for shooting the jogger and blamed his attorney for advising him to suggest that he might not have been completely responsible for the jogger s injury. 161 The Board found that Bagne had a fairly cavalier absence of remorse for his victim, whom he had never met, implying on one occasion that the jogger s injuries were insignificant because after the shooting, she had been able to jog back to her house before going to the hospital. 162 In denying his application, the Board concluded that Bagne seemed unwilling to consistently tell the truth or genuinely accept the consequences for his acts. 163 In reviewing Bagne s pending application to the Ohio Bar, the Ohio Board of Commissioners on Character and Fitness noted that [d]espite the fact that the conduct was very serious and injured the jogger,... the Board is more troubled by the candor and credibility of the applicant concerning the incident. 164 Accordingly, the Ohio Board recommended that Bagne s application be denied, but allowed him to reapply in several years. 165 The Ohio Supreme Court agreed and adopted these recommendations. 166 In doing so, the Court implied that if Bagne would candidly acknowledge his responsibility for his conduct and express remorse for his acts, he would satisfy the good character requirement for Bar admission. More recently, the same Court did not credit another applicant s genuine expression of remorse and acceptance of responsibility. 167 The Ohio Board of Commissioners on Character and Fitness recommended that applicant, Nathan J. Kohler, be disapproved for Bar admission and that he not be permitted to reapply as a candidate for the bar for two years because he deceived partners and clients of the law firm where he formerly worked as a law clerk. 168 Kohler misled clients and his supervisor by repeatedly lying in response to requests for status reports. 169 He fabricated documents, including a court order, complete with a forged signature purporting to be that of the bankruptcy court clerk. 170 Eventually, Kohler confessed his inaction and misrepresentations to the firm. 171 During a hearing, the Board found that: Mr. Kohler was more honest and direct. He admitted he had done the wrong thing. He admitted that when he missed the deadline for filing 160. Id Id. at Id Id Id. at Id Id In re Application of Kohler, 873 N.E.2d 818 (Ohio 2007) Id. at Id Id. at Id. at _02Simon-1pass-r03.indd 56 2/1/ :20:21 PM

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