Strasser v. Character & Fitness Committee of the Kentucky Office of Bar Admissions

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion that conditionally admits the movant to the practice of law in Kentucky because the Character and Fitness Committee has thoroughly considered all the evidence in this matter and correctly concluded that she has not met her burden of proof to establish fitness to practice law.

This Court has plenary and exclusive authority to regulate the practice of law in the Commonwealth of Kentucky. This power brings the responsibility of safeguarding the public interest from admitting lawyers to the practice of law that possess insufficient character and fitness. Furthermore, “[d]ue to the vital social interests at stake, any doubts as to a petitioner’s fitness to practice [law] should be resolved in favor of the public and the court.” In re Olkon, 605 F.Supp. 784 (D.Minn.1985), citing, In re Issennan, 345 U.S. 286, 289, 73 S.Ct. 676, 677, 97 L.Ed. 1013 (1953); In re G.L.S., 586 F.Supp. 375, 379 (D.Md.), affd, 745 F.2d 856 (4th Cir. 1984). A majority of the Character and Fitness Committee has expressed serious doubts as to the fitness of the movant to practice law at this time.

The purpose of Character and Fitness screening is to protect the public trust and safeguard the administration of justice. SCR 2.011(1) states in pertinent part, “The purpose of requiring an applicant to possess good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Code of Professional Responsibility.” SCR 2.011(2) states in pertinent part, “Fitness is the assessment *794of mental and emotional health as it affects the competence of a prospective lawyer. The purpose of requiring an applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession.”

Our requirements are not unique among the other states. See, e.g., In re Singer, 819 So.2d 1017 (La.2002) (“The primary purpose of character and fitness screening is to assure the protection of the public and to safeguard the administration of justice.”); In re Silva, 266 Neb. 419, 665 N.W.2d 592 (2003) (“The primary purposes of character and fitness screening before admission to the bar of Nebraska are to assure the protection of the public and to safeguard the justice system [... ] The public interest requires that the public be secure in its expectation that those who are admitted to the bar are worthy of the trust and confidence clients may reasonably place in their attorneys.”); In re Litt-lejohn, 261 Wis.2d 183, 661 N.W.2d 42 (2003); In re Dortch, 199 W.Va. 571, 486 S.E.2d 311 (1997); In re Lane, 249 Neb. 499, 544 N.W.2d 367 (1996); In re Prager, 422 Mass. 86, 661 N.E.2d 84 (1996); Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 63 USLW 2546 (E.D.Va. 1995). This list is only representative.

This Court is therefore charged with responsibility to the public for those who we allow to be their counselors and advocates before the Court. This responsibility extends primarily to our own citizens, but a weakness here ripples out into society and affects the view of the general public of the legal profession.

This is the second time that this Court and the Character and Fitness Committee have reviewed the eligibility of the movant-to be admitted as a lawyer in Kentucky. As the process continues, new adverse information keeps appearing about the mov-ant which reflects a lack of candor with the Committee and the Court. Moreover, some of the adverse information led a majority of the Character and Fitness Committee to conclude that she has failed to demonstrate that she benefited from counseling to address problems of both her remote and recent past.

Initially, the movant appealed an adverse determination by the Character and Fitness Committee.. At that time, the Committee had based its decision on evidence regarding movant’s participation in an escort service and her lack of candor in disclosing this information to law schools and to the Committee. By a 5 to 1 vote, this Court rejected the recommendation of the Committee and ordered that her application to the Kentucky Bar Association be granted and that her examination grades be released. She failed the multi-state portion of the examination and was thus denied admission on that ground.

The movant reapplied for admission on May 13, 2003, and in July 2003, successfully passed the multi-state examination under written waiver that specified that her score would not be released until she was certified as to character and fitness. The Committee conducted additional investigations into her background since March 20, 2003, as well as one additional hearing. Its recommendation to deny admission was made only after very careful consideration of all the evidence presented during the initial investigation and the evidence obtained subsequently during the second investigation.

This second investigation revealed new adverse evidence that showed movant had been untruthful a number of times during the period from 1999 to 2003 regarding an incident of falling or being pushed down the steps of a house trailer.

*795On the night of the fall, the movant had called Indiana police and filed a complaint stating that her boyfriend pushed her down the stairs. However, her description of the event changed when she sought insurance recovery.

In her deposition filed in an Indiana civil case seeking recovery from a homeowner’s insurance company, the movant alleged her damages were caused by falling from the steps as she walked to her vehicle. Upon questioning, she described in great detail that she traveled to the mobile home shared by her boyfriend and another man in order to tell her boyfriend that she was pregnant. She testified that she turned to leave and fell down the rickety steps. She had called police to report the incident, but testified in the civil case, “I lied and told them that Bryan pushed me.” She testified that she lied because she was upset and angry.

Among the other problems presented by the evidence are a failure to make complete disclosure in a timely manner, and a pattern of omitting various significant details from her applications to law schools and to be admitted to the bar. Her first law school application admitted having been charged with a DUI in 1996, but she disavowed any other violations. Later, she filed an amendment to her application stating that she had been arrested for failure to appear for a traffic court violation. Subsequently, she applied for admission to another law school in 1999 and acknowledged a DUI charge and again affirmatively stated that she had not been charged with any other violations. In yet another application to be a legal intern, she disclosed the DUI charge and stated that in 1990 she was arrested for being a runaway. Finally, in her application for admission to the Kentucky Bar, she again disclosed the 1996 DUI and also that she had been arrested and cited for a misdemeanor charge of prostitution that was dismissed without prejudice after her admission that probable cause existed for the arrest. While she consistently disclosed the DUI charge, no application mentioned above contains a full disclosure of facts.

On two separate occasions, the Committee requested further information about the prostitution charge but she refused to provide an explanation other than to say the record was being expunged. Later, she admitted that she had been involved in an escort service.

On her bar application, she stated that she had not been a party to any civil proceeding. Two months later, she filed the civil lawsuit mentioned above against her former boyfriend and others for damages from the fall. Although she became a plaintiff against the insurance company, she did not amend her application to include this information.

In her reapplication, she disclosed information regarding a criminal complaint made against her by a former boyfriend, as well as information regarding a civil complaint in Jefferson Circuit Court. This reapplication did not disclose any information about the civil lawsuit in Indiana.

There was also testimony from the mov-ant regarding her consumption of large amounts of alcohol.

Based on all this evidence, the Committee concluded that she continued to engage in dishonest conduct and that she was not truthful in answering the questions on her reapplication. The Committee noted that her lack of candor was not limited to her answers on her reapplication, but that she did not disclose the civil litigation in her prior character and fitness determination as required. She was also not truthful in her deposition in her civil and criminal cases. It also noted that the failure to be truthful continued as a pattern when she failed to disclose her full record of legal *796problems relating to the escort service and her activities therein on her law school applications.

The Committee concluded that she did not meet the burden of proof to establish that she possesses the good moral character necessary to be admitted to the Kentucky Bar. The evidence presented here shows that doubts persist as to her present character and fitness to practice law. These doubts should be construed in favor of the public and the courts and her application denied. Isserman, supra.

The admission system in Kentucky has been more than accommodating regarding those applicants who are challenged by physical, mental, medical, emotional, and ethical disabilities. The major responsibility of the applicant is to be forthcoming and truthful in providing answers to the Committee’s requests. It is our responsibility to maintain the public trust in the legal profession by closely guarding admission from those exhibiting serious doubts as to their candor with the courts.

Our Commonwealth enjoys comity and reciprocity with members of the legal profession of other states. Among these states, members of their bar associations may enter the practice of law in Kentucky without examination and vice versa. See, e.g., SCR 2.110. Admission to the practice of law must be kept to a standard of character and fitness lest we become suspect as to reciprocity with other states or in the eyes of the public, which relies on us to safeguard the legal profession. What follows are some of the cases other states have decided on similar facts.

Omissions on applications tend to reflect poorly on character and fitness. “Evidence of false statements, including material omissions, and lack of candor in the admissions process reflect poorly on an applicant’s present character, fitness, and moral qualifications.” In re Bagne, 102 Ohio St.3d 182, 808 N.E.2d 372 (2004) citing In re Panepinto, 84 Ohio St.3d 397, 704 N.E.2d 564 (1999); In re Cvammen, 102 Ohio St.3d 13, 806 N.E.2d 498 (2004). Even one incomplete answer can lead to the disapproval of an admission application if the applicant does not fully and honestly explain when the opportunity arises. See, e.g., In re Irelandr-Phillips, 71 Ohio St.3d 609, 646 N.E.2d 453 (1995).

In Bagne, supra, the applicant failed to disclose fully the details of an incident between himself and a jogger 11 years prior to bar application where the jogger had been injured. The Board determined he had committed a crime and that he had provided incomplete facts and false statements to law enforcement and the Michigan Bar previously. It accordingly denied his application; noting that the Michigan Bar had done so previously. It did allow him to reapply on recommendation of the Character and Fitness committee.

In Cvammen, supra, the Ohio Supreme Court held that false and incomplete answers in a bar application and an interview to take the bar examination, and continued attempts to avoid truth, established lack of integrity for admission to practice law on a permanent basis. That applicant had not fully and truthfully answered questions about the circumstances surrounding his forced resignation from employment with a real estate company. It held that “A hearing to determine character and fitness should be more of a mutual inquiry for the purpose of acquainting this court with the applicant’s innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness and self-restraint which are usually associated with the accepted definition of ‘good moral character.’ ” 806 N.E.2d at 501 citing In re Davis, 38 Ohio St.2d 273, 67 0.0.2d 344, 313 N.E.2d 363 (1974). Cvammen was effectively permanently disbarred prior to ever being admitted to sit for the bar exam.

*797Integrity, truthfulness, candor and sobriety should be the hallmarks of the legal profession. This Court, in reviewing the report of the Committee, should not substitute its own conclusions for those of the Committee except where they are clearly erroneous. That is not the case in this situation.

Certainly, it would be hoped that a candidate for admission to the bar with a troubled background can be rehabilitated over time. It is only common sense that recovery from a long history of ethical, alcohol or other problems is rarely quick or easy. The potential for relapses is always present. It is difficult to see how effective rehabilitation could occur simultaneously with the establishment of a law practice that involves direct contact with clients for legal services.

Under all the circumstances, I must agree with the decision of the Committee that the movant has not established the necessary burden of proof. Thus, admission should be denied at this time.

COOPER and GRAVES, JJ., join this dissenting opinion.