In Re: Committee on Bar Admissions Cfn-8972 , 217 So. 3d 278 ( 2016 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #057
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 19th day of October, 2016, are as follows:
PER CURIAM:
2014-BA-1338 IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972
CONDITIONAL ADMISSION GRANTED.
WEIMER, J., dissents and assigns reasons.
HUGHES, J., dissents in part for the reasons assigned by
Crichton, J.
CRICHTON, J., dissents in part and assigns reasons.
10/19/16
SUPREME COURT OF LOUISIANA
NO. 2014-BA-1338
IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972
BAR ADMISSIONS PROCEEDING
PER CURIAM
Petitioner successfully passed the Louisiana bar examination in July 2003.
The Committee on Bar Admissions (“Committee”) subsequently declined to certify
petitioner for admission, citing his arrests for felony aggravated battery and hit and
run driving and his lack of candor in failing to disclose either of these arrests to the
Committee. While the battery charge was still pending, petitioner applied to this
court for admission. We declined to consider the application but reserved
petitioner’s right to reapply after the criminal charge was concluded.
Petitioner reapplied for admission in 2005, after the battery charge was
dismissed. At that time, we appointed a commissioner to take character and fitness
evidence, but by 2014, petitioner had not taken any action to move the matter
towards resolution. The commissioner therefore requested to be relieved of his
appointment. Accordingly, in April 2014, we dismissed petitioner’s application for
admission without prejudice. In re: Committee on Bar Admissions CFN-8972, 05-
1046 (La. 4/9/14), 138 So. 3d 604.
In June 2014, petitioner again sought admission. We remanded the matter to
the Committee on Bar Admissions Panel on Character and Fitness to conduct an
investigation and appointed a commissioner to take character and fitness evidence.
Following a hearing, the commissioner recommended to this court that petitioner
be conditionally admitted to the practice of law, subject to the following
conditions: (1) petitioner shall comply with a Judges and Lawyers Assistance
Program (“JLAP”) agreement, and (2) petitioner shall be required to take
additional continuing legal education courses each year of his conditional
admission. Both the Committee and petitioner objected to the commissioner’s
recommendation, and accordingly, the case was set on the docket for oral argument
in October 2015.
During oral argument, questions were raised concerning petitioner’s blood
Phosphatidylethanol (PEth) test conducted at Palmetto Addiction Recovery Center
in July 2013, and whether there was a discrepancy between the positive results of
the test and petitioner’s self-report to Palmetto that he now drinks alcohol only
infrequently. Because these issues were not addressed at the hearing, and an
explanation of the apparent discrepancy required expert medical opinion which
was not contained in the record, on November 12, 2015, we remanded this matter
for a supplemental hearing before the commissioner.
On remand, the parties took the deposition of Palmetto’s medical director
and filed briefs addressing petitioner’s PEth test. The commissioner also ordered
the parties to take the deposition of the JLAP director. In February 2016, the
commissioner filed his report with this court, reiterating his recommendation that
petitioner should be conditionally admitted subject to his compliance with the
terms and conditions of a JLAP agreement. Petitioner objected to that
recommendation, and oral argument was conducted before this court pursuant to
Supreme Court Rule XVII, § 9(D)(11).
This matter raises several issues for our consideration in determining
whether petitioner possesses the requisite good moral character and fitness to be
admitted to the bar. First, the record shows that petitioner’s college and law school
years were marked by his involvement in an unusually large number of criminal
2
offenses.1 However, it is noteworthy that petitioner was last arrested in 2003, and
he has not been involved in any criminal offense since that time. While the
criminal offenses are serious, and the pattern of offenses is disturbing, given the
age of the conduct and the fact that the conduct has not been repeated in the last
thirteen years, we find that the criminal offenses, standing alone, are not a basis to
deny admission.
The second issue we will consider is petitioner’s lack of candor. The
commissioner found there is no question that petitioner demonstrated a lack of
candor when he applied for admission in 2003, as he did not update his application
to disclose his arrest for hit and run driving or his arrest for aggravated battery.
While Supreme Court Rule XVII did not then contain a provision imposing a
continuing duty to keep the bar application current, nevertheless, petitioner was
obligated to disclose material facts in connection with his bar admission
application. Furthermore, in finding that petitioner demonstrated a lack of candor,
the commissioner implicitly rejected petitioner’s explanation that he contacted the
Committee after the hit and run and was informed that he was not required to
update his application. Notwithstanding this finding, the commissioner also found
that petitioner is rehabilitated from his lack of candor, given that he truthfully
completed his 2014 application and testified openly and honestly at the character
and fitness hearing. We cannot say that the commissioner’s credibility finding in
this regard is clearly wrong. See In re: Hinson-Lyles, 02-2578, n.6 (La. 12/3/03),
864 So. 2d 108 (“[w]hile we afford some deference to the commissioner’s
recommendation, making due allowance for the commissioner’s opportunity to
1
These included the following: April 1997 citation for minor in possession of alcohol; September
1999 citation for transferring alcohol to a minor; February 2001 arrest for hit and run driving and
reckless driving; May 2002 citation for disturbing the peace; September 2002 arrest for battery,
public intoxication, and disturbing the peace; February 2003 arrest for hit and run driving; and
July 2003 arrest for aggravated battery. None of these arrests resulted in a criminal conviction.
3
observe and evaluate the demeanor of the applicant and the witnesses, the ultimate
decision regarding admission rests with this court”).
Next, we turn to petitioner’s alcohol issues. The record reveals that in July
2005, during petitioner’s first bar admission proceeding, he was admitted to
Palmetto Addiction Recovery Center for a five-day inpatient substance abuse
evaluation. Following the evaluation, petitioner was diagnosed as meeting the
criteria for substance abuse. JLAP and Palmetto recommended that petitioner
enter into a one-year monitoring agreement with the standard conditions, but
petitioner refused to execute the agreement. The bar admission proceeding then
lingered without action for nine years, until it was dismissed by the court.
In 2013, in conjunction with his second application for admission, petitioner
was briefly “interviewed” by a physician at Palmetto. During this “interview,”
petitioner reported that he only drinks alcohol once or twice a month and that he
abstained completely from alcohol from February 2012 through February 2013.
Because petitioner had never been subject to a JLAP agreement, this was an
anecdotal report only and was not supported by objective evidence. Based on the
information petitioner himself reported to Palmetto, he was diagnosed with a
“distant history of alcohol abuse, in remission,” and Palmetto concluded that
petitioner does not need treatment and does not need JLAP monitoring. After
Palmetto issued its report to this effect, it received the positive results of
petitioner’s PEth test, but no amended report was issued.
Notwithstanding Palmetto’s report, the commissioner recommended that
petitioner’s admission be conditioned upon his compliance with a JLAP agreement
because he has not been able to provide the court with documented rather than
anecdotal evidence of his rehabilitation from alcohol abuse. Petitioner objects to
this portion of the commissioner’s recommendation, citing the Palmetto report.
4
We agree with the commissioner that petitioner’s failure to provide this
court with documented evidence of his rehabilitation from alcohol abuse is
troubling, particularly given that all of his underlying conduct is alcohol-related.
Petitioner has gone to significant lengths to avoid complying with a JLAP
agreement when that was recommended eleven years ago in connection with his
first bar admission proceeding. Furthermore, the conclusions drawn in the 2013
Palmetto report are clearly based upon information provided by petitioner himself
in a brief “interview” – information which is called into serious question by the
results of the blood PEth test. Therefore, we are simply not comfortable accepting
Palmetto’s recommendation that petitioner “does not appear to need LAP
monitoring at this time.” Accordingly, as a condition of petitioner’s admission to
the bar, we will require that he enter into a JLAP diagnostic monitoring agreement
for one year.
Finally, we must address the issue of petitioner’s competence to practice
law. As previously stated, petitioner passed the Louisiana bar exam in July 2003.2
He admits that he has not attended any continuing legal education courses since
that time. This raises concerns over whether petitioner has kept current in the law.
To address this concern, we will adopt the commissioner’s recommendation that
petitioner be required to attend additional continuing legal education courses.
Petitioner shall also be required to attend and successfully complete the Louisiana
State Bar Association’s Ethics School.
In sum, after hearing oral argument, reviewing the evidence, and considering
the law, we conclude petitioner is eligible to be admitted to the practice of law in
Louisiana, subject to the following conditions:
A. Petitioner shall execute a one-year diagnostic
monitoring agreement with JLAP.
2
Petitioner did recently re-take and pass the Multistate Professional Responsibility Examination.
5
B. The period of this conditional admission shall
coincide with the period of petitioner’s JLAP
agreement. However, petitioner’s conditional
admission status shall not be terminated until this
court so orders.
C. Petitioner shall authorize the Executive Director of
JLAP to report any violations of the JLAP agreement
to the Office of Disciplinary Counsel (“ODC”).
D. Upon the expiration of the term of petitioner’s JLAP
agreement, the Executive Director of JLAP shall
forward to the ODC (1) a final report of petitioner’s
progress and participation in JLAP, and (2) a
recommendation regarding the need for petitioner’s
continued participation in JLAP.
E. Petitioner shall cooperate with JLAP and the ODC,
and shall comply with any and all requirements
imposed upon him by JLAP and the ODC.
F. In addition to his ordinary mandatory continuing legal
education requirements, petitioner shall complete an
additional 12.5 hours of continuing legal education
for each year of his probationary period.
G. During the period of this conditional admission,
petitioner shall attend and successfully complete the
Louisiana State Bar Association’s Ethics School
program.
6
Within thirty days prior to the expiration of the conditional admission, the
ODC shall file a report in this court in which it shall recommend to the court that
the conditional admission be allowed to terminate or be extended.
Should petitioner fail to make a good faith effort to satisfy these conditions,
or should he commit any misconduct during the period of probation, his
conditional right to practice may be terminated or he may be subjected to other
discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.
CONDITIONAL ADMISSION GRANTED.
7
10/19/16
SUPREME COURT OF LOUISIANA
NO. 14-BA-1338
IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972
BAR ADMISSION PROCEEDING
WEIMER, J., dissenting.
Because the Louisiana Committee on Bar Admissions refrained from certifying
the petitioner for admission, this legal standard applies: “the applicant must show by
clear and convincing evidence that his or her character has been rehabilitated and that
such conduct, inclination or instability is unlikely to recur in the future.” La. S. Ct.
Rule XVII, §5(F). This court has previously acknowledged that this standard is
appropriate for a petitioner with a “long record of serious misconduct.” In re
Committee on Bar Admissions CFN-8920, 11-1973, p.1 (La. 7/1/14), 145 So.3d
388, 388.
Disconcertingly, the petitioner’s record of misconduct–and his failure to fulfill
even non-onerous requirements of his undergraduate university to discourage others
from the perils of excessive alcohol consumption–is paralleled by the petitioner’s
approach to his application for admission to the bar. This matter has an
abnormal–quite possibly an unprecedented–procedural history, including a period of
some nine years during which this matter languished due to the petitioner’s inaction.
The results of the petitioner’s recent PEth test, described in the majority’s
opinion, were equivocal. The PEth test did not provide clear and convincing
evidence that the petitioner no longer abuses alcohol. Much of the petitioner’s record
of misconduct appears attributable to his abuse of alcohol.
The complete facts and circumstances, including the presently unresolved issues
relating to the PEth test, compel the conclusion that the petitioner has failed
to meet his burden of proving good character and fitness by clear and convincing
evidence. Although I do not condone the petitioner’s inaction with his bar
application or his inaction in establishing that he no longer has an alcohol abuse
problem during the many years since he was initially not certified for admission, I
would deny the application while allowing for reapplication in one year.
Commendable steps the petitioner has taken in his private and civic life presently
suggest–but do not yet meet–the standard of clear and convincing evidence. In my
view, the one-year period would afford a final opportunity for the petitioner to dispel
lingering doubt regarding his efforts to overcome alcohol abuse, which has proven
so problematic for himself and others he has encountered.
2
10/19/16
SUPREME COURT OF LOUISIANA
No. 2014-BA-1338
IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972
BAR ADMISSION PROCEEDING
Hughes, J., dissents.
I dissent in part for the reasons assigned by Crichton, J.
1
10/19/16
SUPREME COURT OF LOUISIANA
No. 2014-BA-1338
IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972
BAR ADMISSION PROCEEDING
CRICHTON, J., dissents in part.
I respectfully dissent in part from the majority opinion. I specifically
disagree with the portion of the opinion imposing JLAP monitoring. Under the
particular circumstances of this case, I would find that a JLAP monitoring
agreement is not warranted here. First, there is no medical testimony or
documentary evidence in this case that indicates a JLAP monitoring contract is
warranted. Rather, the uncontested medical testimony and evidence indicates that
the petitioner is not currently abusing alcohol, has not been diagnosed with alcohol
dependence, and does not currently need any treatment for alcohol or other
substance abuse or dependence. Second, this petitioner’s alcohol abuse is now in
the distant past—over a decade old. Consequently, in my view, there is no basis in
the record to treat this petitioner as if he were alcohol dependent or actively
abusing alcohol by requiring a JLAP monitoring agreement.
In all other respects, I join the majority opinion.