(dissenting).
[¶ 28.] I respectfully dissent because I am convinced that Ogilvie has failed to establish by clear and convincing evidence that he possesses the “good moral character” to gain admission to the State Bar of South Dakota.
[¶ 29.] In Application of Widdison, 539 N.W.2d 671, 675 (S.D.1995) (citing In re Egan, 52 S.D. 394, 398, 218 N.W. 1, 2-3 (1928)), we set forth the basis upon which an attorney is allowed to enter and remain in this profession. Therein we stated:
“The right to practice law” is not in any proper sense of the word a “right” at all, but rather a matter of license and high privilege. Certainly it is in no sense an absolute right. It is in the nature of a franchise to the enjoyment of which no one is admitted as a matter of right but only upon proof of fitness and qualifications which must be maintained if the privilege is to continue in enjoyment.
[¶ 30.] The issue is whether Ogilvie possesses “good moral character,” a mandatory requirement for admission. SDCL 16-16-2. SDCL 16-16-2.1 defines “good moral character” as including, but not limited to, “qualities of honesty, candor, trustworthiness, diligence, reliability, observance of fiduciary and financial responsibility, and respect for the rights of others and for the judicial process.” That statute also provides that “any fact reflecting a deficiency of good moral character may constitute a basis for a denial of admission.” Widdison, 539 N.W.2d at 678. The burden of establishing good moral character is the responsibility of the applicant and must be made by clear and convincing evidence. SDCL 16-16-2.2. In reviewing this case, per SDCL 16-16-16, we must conduct a de novo review of both questions of law and fact. Widdison, 539 N.W.2d at 675.
[¶ 31.] First, I feel compelled to observe that the Board in this case seems to treat admission to practice law in South Dakota as a RIGHT rather than the PRIVILEGE which it is. In reviewing the hearing transcripts to these proceedings, and the Board’s own findings and conclusions, the inescapable conclusion is that the Board felt that simply because he passed our bar examination and since his troubling events are in the past, Ogilvie should be admitted. This approach ignores our holding in Widdison and defeats the safe guard of having a Board of Bar Examiners. Their role is to protect the citizens of South Dakota by preventing unsavory, questionable individuals from wielding the powers flowing from the holding of a license to practice law. Caution should be their guiding principle. In my view, it would be better for them to err on the side of denial, rather than grant admis*62sion to an individual who may wreak havoc on our unsuspecting and trusting citizens.
[¶ 32.] As our rules for admission reveal, above all else, an attorney must be forthright and honest. SDCL 16-16-2.1. There is no compromise in this area. I believe Ogilvie failed to show he possesses those requisites. The hearing transcripts are replete with instances of his evasive answers and inconsistent testimony between himself and his witnesses.
[¶ 33.] One significant instance involves the testimony surrounding Colleen Roper’s allegation that Ogilvie assaulted her, which conduct resulted in the issuance of a temporary restraining order against him. His bar application disclosed his initial version of the event. In essence, he denied ever striking Roper. At the first hearing, Board Member Leach questioned Ogilvie about pictures showing Roper with a bruised forehead and possibly a bruised right arm she allegedly suffered at Ogil-vie’s hands. When Leach asked Ogilvie about Roper’s injuries and allegations, he responded that he merely had “heard [about them] through the grapevine” from Collette Brown (now Olson), then wife to Ogilvie’s friend, Doug Brown. According to Ogilvie, he went to visit the Browns and, when he arrived, Collette told him he was not welcome at their home because he had assaulted Roper. Later, he contends that Collette told him that Roper admitted to her that the injuries were accidentally self-inflicted, stating that following an argument with Ogilvie and in her haste to follow him, she injured herself opening the car door into her forehead (he never explained the bruise on her arm that was apparent on the photograph).
[¶ 34.] At the second hearing, Ogilvie produced other witnesses to support his “grapevine” testimony at the first hearing. First, Melanie Kelley testified that Col-lette told her that Roper injured herself when jerking her car door open. The inconsistency, and resultant problem for Ogilvie, is that Kelley testified that Col-lette told her Roper hit herself in the eye, not the forehead. Then Doug Brown, ex-husband of Collette, testified that Collette told him the car door incident occurred at some Interstate 90 ramp. The most unfavorable testimony for Ogilvie is that, at the same hearing, Collette testified that Roper never told her such a story and, furthermore, she had never told Ogilvie, Kelley or Doug any such story. Ogilvie’s three witnesses all tell inconsistent stones and all are inconsistent with his own story. His explanation that Collette “just doesn’t remember” insults the common sense of this Court and falls far below his burden to prove his good moral character by clear and convincing evidence. See Widdison, 539 N.W.2d at 678-79.
[¶ 35.] Another instance involves testimony concerning Ogilvie’s and Roper’s involvement in the circuit court divorce proceeding of Terrill v. Terrill.6 Board Member Leach asked Ogilvie if he had ever attempted to dissuade Roper from testifying in that case. Ogilvie responded that he had not. Leach then produced a handwritten note from Ogilvie addressed to Roper, which reads in pertinent part as follows:
Colleen, guess what? Your mom called to say Dave Claggett called for you on business and will try again at your mom’s. I told you this would happen. If you speak to him, I don’t think you and I should speak again before that trial is over. Please move out of my house and go home to Farmington [New Mexico]. I hope to see you after the 9th but I hope to God I don’t see you in the hall in Deadwood on the 9th. I will speak to you before you speak to Clag-gett if you like. I will be happy to speak to you on the phone in Farmington at any time, but I know you and I don’t think you will avoid him as I asked. *63Therefore, please leave my house key on the table. If you forget anything, I will bring it when I come down to New Mexico. If you involve yourself anymore in Terrill v. Terrill, no matter how inadvertently, then I will mail it to you because the rift between us will be too large to overcome. Believe it or not, this was not an easy note for me to write and I did not write it in anger. I hope things work out for us but I just don’t know anymore. Love, Jack.
[¶ 36.] This note reveals that Ogilvie’s earlier answer regarding dissuading her was not honest. It clearly shows he DID try to dissuade Roper from testifying in Terrill v. Terrill.
[¶ 37.] Leach then gave Ogilvie the opportunity to change his earlier, untruthful answer, but he refused. Rather, he chose to attempt to explain the note by testifying that it concerned Roper’s paralegal work on the case for attorney, Dave Claggett, not her testimony in the case. His explanation, if believed, requires us to: (1) ignore the plain language of his own personal note; (2) reject attorney Claggett’s later testimony that Roper did not work for him as a paralegal on the Terrill matter; and (3) believe Ogilvie’s unconvincing response to attorney Claggett’s testimony in which Ogilvie explains that Roper left everyday for what he assumed to be work for Clag-gett. After Claggett’s testimony, Ogilvie asked the Board to believe that his first paralegal story came from representations to him by Roper; however, that simply cannot be reconciled with all of the other evidence that was presented.
[¶ 38.] Ogilvie seems to have a new answer for everything. As was the situation regarding the issue of Roper’s injuries, for each new unfavorable fact that appears, he has a new and different explanation.
[¶ 39.] Furthermore, the sentiment expressed about his relationship with Roper in the note is inconsistent with his testimony to the Board. He told them that Roper was mentally unstable, he expected her to be leaving for New Mexico soon, he hoped she would find another boyfriend and he wanted to be away from her and finished with the relationship. His note, however, reveals a much different story. Therein, he expresses anguish over potentially losing her, mentions going to see her in New Mexico and promises to return anything of hers she forgets. His story to the Board is a complete turnaround from his sentiment in the note. Both stories cannot be true. This seems to be the pattern in all of his testimony.
[¶ 40.] In further connection with questioning involving his relation to the Terrill v. Terrill case, Ogilvie played coy with the Board and gave evasive answers when asked why he would be in Deadwood on June 9th. Ogilvie testified at the first healing in the following manner:
Q. [Board Member Leach] What was going to take you to Deadwood on the 9th, then?
A. A subpoena. I don’t know that I even had the subpoena at that time, but I was subpoenaed to appear on the 9th or sometime in Deadwood at the Terrill v. Terrill trial.
Q. Who subpoenaed you?
A. Dave Claggett.
Q. Why were you subpoenaed?
A. I don’t know. I sat in the hall.
Q. You have no idea why you were subpoenaed in that case?
A. I would have to assume. Would you like me to assume?
Q. Well, yeah, go ahead and tell us what you assumed.
A. I would have to think that I was going to be a rebuttal witness if needed and therefore, I sat in the hall and I was not needed so then I went home.
Q. To rebut what?
A. I would have to assume to rebut that I had been in a relationship with Sharon Terrill.
Q. Where would that allegation have come from?
*64A. Because I had been in a relationship with Sharon Terrill.
Q. You did have an interest in Terrill v. Terrill ?
A. No, that relationship had been over for two years.
Q. You had a relationship with Mrs. Terrill, a sexual relationship, correct?
A. That’s correct
Q. While she was married to Mr. Ter-rill?
A. That’s correct, but I did not know that.
Q. And now Mr. and Mrs. Terrill were getting divorced?
A. That’s correct.
Q. And you were subpoenaed up as a witness in their divorce trial?
A. That’s right. I think it was a custody trial.
Q. Now, at that point, Mr. Ogilvie, you had a pretty good idea why you were being subpoenaed, didn’t you?
A. Yes, just what I just told you, but I could only guess because I wasn’t told exactly why I was being subpoenaed.
[¶ 41.] First, Ogilvie’s testimony lacks the honesty and candor required under SDCL 16-16-2.1. Second, how did Ogilvie intend to rebut the assertion that he had an affair with Sharon Terrill if it was in fact true, as he now admits? Did he intend to perjure himself? The purpose of the proceedings before the Board was to ascertain if he had the requisite good moral character to practice law in South Dakota. His evasive answers and coy attitude toward the questioner exhibit an unwillingness to come forward with the complete truth. Permitting such an individual to practice law will diminish the integrity and trustworthiness of the South Dakota Bar, lowering public confidence in our profession.
[¶ 42.] Another instance related to the Terrill matter that demonstrates Ogilvie’s lack of candor relates to his testimony regarding the propriety of attempting to persuade Roper not to testify in the Terrill matter. He was asked: “Do you think it was appropriate for you to tell a potential witness in a trial to, quote, go home to Farmington, New Mexico, closed quote?” Ogilvie responded “[a]t the time I thought it was fine.” The most distressing and disturbing fact about this testimony is Og-ilvie’s status “at the time.” He was thirty-nine years old, had taken one year of paralegal studies at National College, had completed a legal ethics class and received the second highest grade, had worked as a paralegal and he knew Roper had been subpoenaed (although he testified otherwise, his personal note discredits his testimony). Yet, he thought it was “fine” to suggest a subpoenaed witness leave the state. This unethical, truth-suppressing conduct is not deserving of the privilege to practice law in South Dakota.
[¶ 43.] The Board has twice recommended Ogilvie for conditional admission. It would seem that they are willing to ignore their better judgment. After the second hearing, despite having several concerns whether he had met his burden of proving good moral character, the Board recommended Ogilvie for conditional admission. My question is why? The Board Chair, after announcing they would recommend Ogilvie for conditional admission, stated her concerns on the record as follows “[w]e are concerned with what we believe are several inconsistencies in the record and your history with the DWIs. The conditional admission is not a public situation. The public does not know you have been conditionally admitted.”
[¶ 44.] If the Board has such grave concerns, which go right to the heart of the determination they are appointed to make, why are they recommending admission? This is especially true if the concerns are legally kept from the public, his potential clients.
[¶ 45.] Furthermore, another Board Member felt compelled to express his additional, specific reservations on the record. He was concerned with inconsistent state*65ments about Ogilvie’s drug and alcohol report as compared to his bar application. He was also concerned with the personal note from Ogilvie to Roper attempting to dissuade her from testifying in the Terrill matter and Ogilvie’s unconvincing explanation. Despite these concerns, this Board member voted for conditional admission. I cannot understand why. Under SDCL 16-16-2.1 “[a] fact reflecting a deficiency of good moral character may constitute a basis for denial of admission.”
[¶ 46.] It could certainly be argued that the Board would prefer to pass the buck to this Court. That argument finds a great deal of support in the Board’s own findings and conclusions of September 9, 1998, following the second hearing. Finding 7 specifically articulates “concerns that arise from the Colleen Roper episode;” in Finding 9 they explain why they find that Ogilvie’s explanations “are not entirely satisfactory;” in Finding 10 they identify several issues in which “[cjertain other doubts are also apparent on this record;” in Finding 14 they reiterate that they have “lingering doubts.”
[¶ 47.] Then the Board entered Conclusions of Law, which among other things held that “The Board has some doubt as to whether the Applicant has carried his burden regarding good moral character” (Conclusion 3) and that “there are unresolved issues of good moral character” (Conclusion 4). Despite all of these factual and legal concerns and doubts regarding Ogilvie’s good moral character, the Board recommended to this Court that he be conditionally admitted to the Bar. Clearly, other than Member Leach, who filed a detailed and persuasive dissent, it would appear the Board disregarded its own articulated concerns and ignored its better judgment.
[¶ 48.] After a third hearing, the Board once again has recommended conditional admission. Unfortunately, that hearing began with what I believe was an offensive and inappropriate motion seeking to disqualify Board Member Leach, the only member who had dissented from the earlier decision. Therein, Ogilvie’s counsel (his brother-in-law and an Assistant United States Attorney in Florida) suggested that Leach’s dissent affected other Board members and the members of this Court when we refused to accept the recommendation of conditional admission. The third hearing also was clearly orchestrated and is replete with lengthy, reasoned answers to softball questions and testimony regarding a high speed, interstate highway car chase (Ogilvie had consistently “forgotten” to mention this dramatic scene in either of the two prior hearings)! Then, knowing what the Board’s earlier concerns were, Ogilvie and his counsel served up tasty, palatable answers for each concern right down the line. It is no wonder Ogilvie gives all the right answers in his third hearing; it is the third time he has had to recount the questionable circumstances in his life. He ought to have his life story down by that point and know exactly what the Board or this Court wants to hear. Furthermore, with his counsel, Steinbeck, doing the direct questioning, and there being no cross-examination, how could the Board not recommend him for admission after recommending him the first time with their specific and articulated serious concerns? Of course, they heard Ogilvie’s cleansed and unchallenged story, entered findings of fact and conclusions specifically eliminating their earlier concerns and again recommended a conditional admission (of course, by then Leach recused himself, and we do not have the benefit of his thoughts on the decision).
[¶ 49.] I am very troubled by the motion to disqualify Leach. Although I can certainly understand why he wanted Leach off the case, his counsel’s reasoning is nothing short of an insult to the integrity of Leach, the Board and the members of this Court. It was a not too subtle attempt to silence any opposition to his case. He contends that permitting Leach to participate prejudices Ogilvie by potentially poisoning our decision once again. In re*66ality, he sought (and ultimately was successful) to remove the one Board member who was fully and actively discharging his duties to determine if Ogilvie possessed good moral character. It is clear that the truth Leach pried out of Ogilvie in the first two hearings mortified his legal team, and they wanted to do anything they could to assure he would not be a factor in the third hearing.
[¶ 50.] Finally, I am compelled to address Patrick Duffy’s scolding and inappropriate closing remarks to the Board at the second hearing. He begins by claiming the hearing was not fair because he did not get notice of certain issues that were raised. His argument lacks merit and undermines his credibility. First, this was the second hearing. No new issues were raised beyond the concerns expressed at the first hearing. Second, under the Board’s rules of practice, Ogilvie had an earlier informal meeting with two Board members before the first hearing at which he was made aware of the Board’s concerns. Duffy’s argument that Ogilvie had no notice is incredible under the facts of this case. He and Ogilvie had ample notice and time to prepare to respond to the issues raised at the second hearing.
[¶ 51.] Then, after complaining that the second hearing was not fair, Duffy proceeded to berate the Board for its treatment of Ogilvie. Duffy should have been reminded that his client was there because his past conduct exhibited need for further evaluation. It is important to note that although the concerns in Ogilvie’s past may be from eight years ago, it was not part of his exuberant youth. He was in his mid-thirties when he made many of the decisions that led to the Board questioning whether he possesses good moral character. More importantly, his recent lack of candor and dishonesty at the hearings only increases my conviction that he does not presently possess good moral character.
[¶ 52.] SDCL 16-16-2.3 lists conduct which is cause for further inquiry into an applicant’s good moral character. The list is as follows:
(a) Unlawful conduct, including cases in which the record of arrest or conviction was expunged, with the exception of juvenile arrests and dispositions unless they pertain to a serious felony;
(b) Academic misconduct;
(e)Making of false statements, including omissions;
(d) Misconduct in employment;
(e) Acts involving dishonesty, disloyalty, fraud, deceit or misrepresentation;
(f) Abuse of legal process, including the filing of vexatious lawsuits;
(g) Neglect of financial responsibilities;
(h) Neglect of professional obligations;
(i) Violation of an order of a court, including child support orders;
(j) Evidence of mental or emotional instability;
(k) Evidence of drug or alcohol dependency or abuse;
Cl) Denial of admission to the bar in another jurisdiction on character and fitness grounds;
(m) Disciplinary action against an applicant in any jurisdiction;
(n) Practicing law while not being so licensed.
The foregoing list is representative, not exclusive.
SDCL 16-16-2.4 guides the Board’s consideration of the questionable conduct listed above. It reads:
(l) In reviewing the relevant conduct identified in § 16-16-2.3 the board shall consider:
(a) Applicant’s age at the time of the conduct;
(b) Recency of conduct;
(c) Reliability of the information concerning the conduct;
(d) Seriousness of the conduct;
(e) Factors underlying the conduct;
(f) Cumulative effect of conduct or information;
*67(g) Evidence of rehabilitation; and
(h) Applicant’s candor in the admission process.
Duffy argued at length that the Board needed to just admit Ogilvie so he could repay his law school debts. The debt an applicant incurs attending law school is not a factor for the Board to consider. It has nothing to do with whether an applicant possesses good moral character. I say Ogilvie should have anticipated that he would not be a “shoe in” for the South Dakota Bar because, as an adult, he engaged in conduct that draws his good moral character into question. Duffy argues that we need people in the Bar with “a little bit of a taste of life.” I would agree, but we only let them in the South Dakota Bar if they are candid about their “taste of life.” Ogilvie has failed that test.
[¶ 53.] Although each case must be decided on its own merits, a review of Widdi-son provides us with significant legal guidance. Therein we held the burden of proving good moral character by clear and convincing evidence remains upon the applicant and that justifications of “I don’t know” and “I don’t remember” along with other examples cited earlier herein, fail to meet that burden. Further, unwarranted attacks on the impartiality of the Board and arguments that Ogilvie is no worse than others who have been earlier admitted to practice totally lack merit. Widdison, 539 N.W.2d at 678 n. 9 (citing Discipline of Jeffries, 500 N.W.2d 220, 227 (S.D.1993)) (Henderson J., dissenting.)
[¶ 54.] I assert that Ogilvie has failed, miserably, to prove by clear and convincing evidence that he possesses the good moral character required to practice law in South Dakota. Although concerned, I clearly would not base this view upon his prior problems with alcohol and drugs; he has made an adequate explanation and there is an adequate basis to conclude they will not re-occur. I am concerned and am basing this dissent on his current conduct, which I assert shows a lack of truth and candor, both of which are essential qualities of an attorney.
. Ogilvie, who had had an affair with Mrs. Terrill, had been subpoenaed as a witness. Roper was also a prospective witness, but the purpose of her testimony is not clear from this record.