In Re Zbiegien

KELLEY, Justice

(dissenting):

I respectfully dissent. When this court admits an applicant to the practice of law, it certifies to the public that the applicant has mastered certain minimum standards of professional competence. It also certifies that it knows of no reason why the applicant-admittee does not possess the character which the profession demands of all admitted attorneys in this state. We judge an applicant’s character by the standard that it must reflect those traits of integrity, honesty and trustworthiness necessary for a lawyer to possess when he or she represents clients, when dealing with professional peers, and when appearing before the courts. Yet, in this case, notwithstanding that we know that this petitioner has demonstrated a lack of candor, and, indeed, has recently engaged in outright dishonesty by plagiarizing and claiming as his own the intellectual works of others with no attempt at appropriate attribution of source, the majority would conclude, even as it condemns the petitioner’s conduct, that he has been “punished” enough by the delay in his admission, is now contrite, and will, if admitted, be trustworthy.

Without doubt the action taken by William Mitchell Law School and the delay caused by these proceedings have resulted in petitioner’s admission date being postponed. In that sense it can be said the delay flowing from his plagiarism constitutes “punishment.” Denial of his application at this stage in his life does indeed have penal repercussions with which I, no less than the majority, have empathy. However, denial of admission at this time, notwithstanding it bears with it consequences of a penal nature, has not as its purpose punishment but rather protection of the public and the integrity of the legal system. In this case, it seems to me that nothing short of a denial would be consistent with the court’s implicit assertion that a grant of admission is equivalent to certification, that so far as we have been able to ascertain, the admittee is honest, trustworthy, and possesses the integrity that the public, the Bar and the courts have a right to expect from an attorney at law. Additionally, in my opinion, it is only by a denial of this petition that this court can send a *878clear message to those already admitted to practice and to those aspirants yet in the law schools the seriousness with which this court considers the character qualification.

To meet the requirements of Professor Steenson’s Products Liability Seminar at William Mitchell Law School, respondent submitted a first draft of a purported research paper which consisted substantially of materials plagiarized from the published works of other authors. Although nearly one-half of the paper is virtually identical to portions of eight law review articles, there was no citation to those articles nor any attempt at attribution. Footnotes, in like manner, were also plagiarized. Petitioner, although never specifically admitting plagiarism does admit these facts. There can be no doubt these acts constituted “intentional plagiarism.” Moreover, it seems clear to me that the modus operandi of the plagiarism belies the contention it resulted from any claimed computer malfunction, as petitioner belatedly asserted. The intent aspect is corroborated by obvious attempts to mask it by omission of an occasional sentence, by changing paragraphing, and by making minor alterations or inserting an occasional alien word in the text of the plagiarized quotation. The plagiarism as well as the attempts to “cover up” clearly violated William Mitchell’s academic rules and standards. As the majority indicates, Professor Steenson, the law school teacher, conducting the seminar, viewed the conduct to be so serious that he recommended expulsion from the law school.

At a subsequent meeting with Associate Dean Downs of the law school, while not specifically denying the plagiarism, the petitioner did offer as mitigating excuses pressures at work and his wife’s health problems following an automobile accident.1 Dean Downs concluded that, in fact, petitioner had plagiarized substantial portions of the paper, and so characterized petitioner’s action in a letter to petitioner dated December 12, 1986.

Petitioner’s verbatim response to Question 13 on the admission application is set out in the majority opinion. The State Board of Law Examiners (Board), composed of both lay and professional members, after a full adversarial type hearing, made unanimous findings that the response to the question was both untruthful and misleading. If I read the opinion correctly, the majority concludes that since the applicant disclosed the incident in the answer, therefore there existed no continuing attempt on the applicant’s part to deceive the Board. It appears to reach that conclusion by extracting from a rather lengthy answer the applicant’s admission that the paper had “defects” and were found to be “errors of omission rather than intent.” I expect the Board, as do I, would appreciate an applicant would try to gloss over and minimize the seriousness of the conduct and present it in the best light possible, but it certainly cannot be unreasonable for the Board to conclude the applicant was perpetrating his deception when he reported falsehoods. Both Professor Steenson and Dean Downs considered the incident to constitute intentional plagiarism and so informed petitioner before or at the time the school’s discipline was imposed. The applicant’s entire response avoids using or referring to plagiarism. Moreover, a reading of it certainly leaves the writer with the impression that the difficulty involved only one quote along with some footnotes (“no authority had been cited for a lengthy direct quote and other end notes were incomplete”). In fact, the submitted paper consisted of over 50 percent of unattributed quotations from not one, but eight authors. I am unable to hold that, in the light of those facts and the additional fact that not until the time of the hearing before the Board did the petitioner admit to any plagiarism, that the Board’s findings of ongoing deception and misleading conduct were unfounded.

*879The fundamental rudiment of theft, dishonesty, has received universal disapprobation by all courts empowered to admit or discipline attorneys. This court has said that one who deliberately engages in deception subverts that “loyalty to truth without which he cannot be a lawyer in the real sense of the word.” See, e.g., In re Nilva, 266 Minn. 576, 583, 123 N.W.2d 803, 809 (1963). We have even disbarred attorneys who have engaged in dishonest conduct, albeit in addition to other serious transgressions. See, e.g., In re Williams, 221 Minn. 554, 23 N.W.2d 4 (1946). Plagiarism is defined in Websters Third New International Dictionary 1728 (1976) “ * * * to steal or pass off as one’s own without crediting the source * * * to commit literary theft; present as new and original an idea * * * derived from an existing source.” It is defined in Black’s Law Dictionary 1305 (rev. 5th ed. 1979) as “The act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.” As one court has pithily observed, when one appropriates without accreditation the original work products of another the act is afforded the colloquial term “chiseling.” See, Oneida, Ltd. v. Nat’l Silver Co., 25 N.Y.S.2d 271, 275 (1940).

Honesty is universally recognized as the character trait most fundamental to the practice of law. The American Bar Association, the body that reflects the attitude of the Bar as a whole, recently revised and recommended Rules on Professional Conduct. The court, with minor amendments, adopted those rules to govern the conduct of Minnesota lawyers. Failure by the lawyer to abide by those rules by engaging in dishonest conduct exposes him or her to public discipline or, in extreme instances, disbarment. Proscribed conduct illustrative of the profession’s concern with this trait is found for example in Rule 3.3 which provides a lawyer shall not intentionally misrepresent a matter of fact or law to a court; in Rule 4.1 which prohibits a lawyer from knowingly making a false statement of law or fact while representing a client; in Rule 8.1 which forbids an applicant for admission to the Bar from falsely stating a material fact; and in Rule 8.4 which labels as professional misconduct any actions of a lawyer involving dishonesty, fraud, deceit, or misrepresentation. I cite neither the authority or the rules to establish that petitioner was dishonest when he plagiarized articles for his paper; that is overwhelmingly established by the evidence as the majority also concludes as it condemns it. Rather, I cite them to underline the seriousness with which the profession and the courts have deemed intentional conduct involving intentional dishonesty by a member of, or a person seeking admission to, the profession.2

The majority opines that the respondent’s plagiarism was “not necessarily sufficient evidence to prove lack of good character and fitness to practice law.” For two reasons I must disagree. First, that statement seems to shift the burden of proving fitness for admission from the shoulders of the applicant to the Board to prove unfitness — certainly not the case. Secondly, it fails to give deference to the Board’s conclusion that in answering Question 13 of the application for admission petitioner “intended to deceive the Board of Law Examiners with respect to plagiarism and with *880respect to the college’s finding of plagiarism, further demonstrating his lack of fitness to be admitted to the Bar * * * ” and that petitioner’s “continuing to deceive the Board regarding the similarities between the paper submitted and the article identified * * * further demonstrates his lack of requisite character and fitness to be admitted to the Bar * * It appears to me those conclusions were amply supported by substantial evidence in the record as a whole and, therefore, should be upheld.3 Apparently as part of his attempt to demonstrate that his attempted cheating by plagiarism constituted an isolated character aberration unlikely to recur, petitioner called three character witnesses, all of whom attested to his good moral character. However, the Board heard each of these witnesses state that they were unaware of the William Mitchell incident, and had they been aware of it, they would not have formed the same favorable opinion.

The facts as found by the Board when combined with the Board’s unique opportunity to assess the credibility of the petitioner and his witnesses, in my view, are more than sufficient to sustain the Board’s findings and conclusions, which, I would hold, are entitled to deference by this court. Accordingly, in the guise of labeling it “remorse,” I decline to substitute my personal empathy for the petitioner. He has undertaken a long struggle to complete arduous educational requirements. However, I find from the record that the ultimate conclusion of the Board that he has not met his burden of proving fitness is supported by substantial evidence.

Though the consequences to petitioner may seem harsh if the Board’s recommendation be adopted, such serious consequences are not without precedents. Examples abound where those who have plagiarized, or engaged in substantially similar conduct, have sustained onerous consequences. Young men and women enrolled at the nation’s service academies have been deprived of education and careers in the officer corps for cheating; high governmental officials have gone to prison for lying; a president of the country has left office in dishonor as a result of his dishonesty; a newspaper critic of a metropolitan newspaper lost his position for plagiarizing a review; a professor of psychology at Harvard University Medical School resigned after it was revealed he had plagiarized another’s work in an article written in a professional journal;4 and a candidate for the presidency of a university who reportedly had plagiarized a portion of a research paper withdrew his candidacy under pressure. I suggest that these examples reflect societal concerns that people in responsible positions — such as is an attorney at law — be held to a high degree of integrity-

Even though I would deny the petition, I would not foreclose forever, petitioner’s admission to the Bar. I would, however, require that he prove that after a reasonable period of time had elapsed he then acknowledged and appreciated the seriousness of his transgression; that his remorse is sincere and that he accepts unconditional and full responsibility for the conduct; and demonstrates that from the experience he has learned to conduct his affairs in a manner that this court can, with confidence, certify to the public that his charac*881ter does reflect traits of integrity and trustworthiness.

COYNE, Justice.

I join the dissent of Justice KELLEY.

. Although petitioner later alleged that there were other mitigating circumstances — to-wit, computer problems and a son's truancy, he did not claim that at the time of his meeting with Dean Downs.

. News reports indicate that a California man was convicted and sentenced for permitting his wife, an attorney admitted to practice law in California, to take the California bar examination for him. She likewise was convicted and sentenced and is facing disbarment proceedings. See Ethics, vol. 1, Spring/Summer 1988, pp. 24-25, citing Los Angeles Times, April 27, 1988. Though not specifically involving plagiarism, but certainly involving dishonesty which is the essential component of plagiarism, numerous examples exist where dishonest attorneys have been severely disciplined for similar offenses of altering or submitting false documents. See In re Rabb, 83 N.J. 109, 415 A.2d 1168 (1980) (three years suspension for altering medical report); In re Stump, 621 P.2d 263 (Alaska 1980) (five years suspension for falsifying documentary evidence in civil suit).

. The rules for admission are silent as to weight or deference this court should afford Board findings. Nonetheless, in appeals from referee findings and conclusions in lawyer disciplinary matters (which bear some similarity to this proceeding) we have tested findings to see if supported by substantial evidence, and, if so, affirmed, In re Schmidt, 402 N.W.2d 544, 548 (Minn.1987); In re Getty, 401 N.W.2d 668, 670 (Minn.1987). Likewise, under the Administrative Procedure Act, Minn.Stat. § 14.69 (1986) agency findings may be set aside only if "unsupported by substantial evidence in view of the entire record submitted." Affirmance of such findings should follow if a reasonable mind might accept as adequate. See, e.g., Minneapolis Police Dept. v. Minneapolis Comm'n on Civil Rights, 425 N.W.2d 235, 239 (Minn.1988). The similarity of those types of proceedings to this seemingly suggests a similar review standard should be applicable in this case.

. St. Paul Pioneer Press & Dispatch, Nov. 29, 1988 at 1A, col. 1.