Application of G.W.

• Decision Date: 26 January 2011
• Docket Number: No. ADM–2009–024.,ADM–2009–024.
• Citation: 161 N.H. 401,13 A.3d 194
• Parties: Application of G.W.
• Court: New Hampshire Supreme Court

161 N.H. 401

13 A.3d 194

Application of G.W.

No. ADM–2009–024.

Supreme Court of New Hampshire.

Argued: Nov. 10, 2010.Opinion Issued: Jan. 26, 2011.

Baker & Hayes, of Lebanon (Patrick T. Hayes on the brief and orally), for the applicant.Thomas V. Trevethick, deputy general counsel, of Concord, on the brief and James L. DeHart, general counsel, of Concord, orally, for the Committee on Character and Fitness.CONBOY, J.

The applicant, G.W., seeks admission to the New Hampshire Bar. The Standing Committee on Character and Fitness of the Supreme Court of New Hampshire (the Committee) filed two adverse reports recommending that the applicant be denied admission. We then issued an order instructing the applicant to show cause why his application should not be denied. See Sup.Ct. R. 42(5)(k). Thereafter, both parties were permitted to file briefs or memoranda, and oral argument was held. We now deny the application.

Supreme Court Rule 42(5)(a) states: “All persons who desire to be admitted to practice law shall be required to establish their moral character and fitness to the satisfaction of the Standing Committee on Character and Fitness of the Supreme Court of New Hampshire in advance of such admission.” The burden of establishing fitness to practice law rests upon the applicant. Application of Appell, 116 N.H. 400, 401, 359 A.2d 634 (1976). The applicant must prove good moral character and fitness by clear and convincing evidence. Application of T.J.S., 141 N.H. 697, 699, 692 A.2d 498 (1997). Any doubt concerning character and fitness should be resolved in favor of protecting the public by denying admission to the applicant. Id. at 702–03, 692 A.2d 498.

As a general rule, we accord deference to a fact finder's determination of witness credibility and resolution of disputed questions of fact. Id. at 699, 692 A.2d 498. Nevertheless, the Committee's recommendation is advisory only and neither binds this court nor limits our authority to take action. Id.

The following facts are either evidenced in the record or are not disputed by the parties. Between 1991 and 2007, the applicant applied to sit for the New Hampshire bar examination seven times. During this period, he reported several criminal convictions to the Committee: (1) a reckless conduct conviction stemming from an incident on April Fools' Day, 1993, when the applicant “pretended to be a robber” at a store in North Conway; (2) six convictions in Caledonia County (Vermont) District Court in 1999 for violating the conditions of a restraining order; (3) a 2001 criminal threatening conviction; and (4) a 2004 conviction for driving while intoxicated (DWI). In addition, according to his brief in this matter, the applicant disclosed various financial obligations. On his initial application, dated November 30, 1991, he noted approximately $40,000 in student loans. By the time of his November 27, 2007 application, the reported debt owed to the U.S. Department of Education had increased to $138,471.42.

The applicant was ultimately successful on the February 2008 bar examination. In May 2008, the Committee interviewed the applicant and subsequently submitted a report recommending that he not be admitted to the bar. The applicant requested a hearing at which he would have the opportunity to address the concerns expressed by the Committee. See Sup.Ct. R. 42(5)(j). That hearing was conducted in January 2009. On February 17, 2009, the Committee submitted a second negative report, detailing the results of the hearing and concluding that the applicant had failed to meet his burden. As grounds to deny his admission, the Committee cited the applicant's history of criminal acts, see Sup.Ct. R. 42B(VII)(6), financial irresponsibility, see Sup.Ct. R. 42B(VII)(11), and inability to handle his own affairs, see Sup.Ct. R. 42B(VII)(14).

The Committee found that “[the applicant] used the fact that he was injured in an automobile accident as an excuse for his failure to have taken and passed the bar over the past 20 years and his failure to have paid off his student loans.” At the time of the hearing, the applicant was living in his mother's house. He had been working at her motel part-time in lieu of rent, but the motel had gone into foreclosure. In 2008, he briefly held two positions as a bartender. He quit the first bartending job, explaining to the Committee, “I didn't enjoy the service business. I felt it was beneath me.” According to the Committee's report, other than these positions and a job as a waiter in 1996, the applicant has not held gainful employment since his law school graduation almost twenty years ago.

In response to the question of why he had not considered seeking other employment in order to make payment on his loans, the applicant told the Committee that,

if I owed a measly $30,000, that's an amount of money that certainly could be paid off with a, you know, $10 an hour job or something of that nature. But because there's $120,000 worth of interest on that $30,000 principal, realistically, I need a good job in order to pay that off. And I was trained to practice law[;] I wasn't trained to do anything else. And I have no desire to do anything else at this point.

He also asserted to the Committee that, as a consequence of being on an income-contingent repayment plan, he was current on his student loan obligations.

The applicant brought copies of three credit reports to the hearing. He admitted that he had handwritten “AAA perf. credit” on one of them and told the Committee, “[I]f we could, you know, skip that little superficial aspect of the report, if you look at the reports, all three of them, what you'll find is that I have been extremely responsible and I have not, you know, even been late with any credit card debt.” Yet, on his July 2002 Petition and Questionnaire for Admission to the New Hampshire Bar, he reported $15,000 in delinquent credit card debt. When questioned, “he indicated that the statute of limitations has run, it was a long time ago, and he doesn't currently remember the details.”

When questioned about his criminal record, the applicant stated that he lacked mens rea for each of his nine convictions. With respect to the reckless conduct conviction based on his “pretending to be a robber,” the applicant explained, “I was on SSI for six months directly following that incident, so that alone would demonstrate no mens rea. But supplemental to that was the fact that it happened on April Fool's Day. It was a bad joke. I'd say those would be the two reasons.” At a previous interview, the applicant had also discussed the incident. At that time, the applicant told the interviewer that he “was writing a book at the time and wanted to see what the store clerk's reaction would be when he showed her a knife with a blade between six and seven inches in length.”

When questioned about his six convictions for violating a restraining order, the applicant asserted that he had been “framed.” As evidence of this, he produced a motion to dismiss the restraining order and stated:

[W]hat I have here is a motion that was filed by the complainant. It's a motion to dismiss the complaint and the temporary restraining order basically, because it's not true, it says here in pleading 1; pleading 2 says that her father had forced her to lie.

However, the applicant admitted that he had written the motion to dismiss and had the complainant sign it. He was convicted of having violated the terms of the restraining order by sending her copies of motions. At the Committee hearing, he admitted that he had violated the restraining order in several ways: “I had tried to call her. I had tried to call a friend. I was within 1,000 feet of her house.” However, he asserted,

I didn't have the mens rea because I believe that she—it may sound fantastic, but she had told me the last time that she was being held in her house, locked up, her keys were being—had been taken, her money was taken, her purse, whatever, so in that sense, I lacked a mens rea because I was trying to see what was going on, to see if she was being held there.

The record does not reflect any statement by the defendant concerning his 2004 DWI conviction.

In concluding its report, the Committee stated, “[The applicant]'s inability to responsibly deal with his personal financial obligations, his inability to accept responsibility for his criminal conduct, and his practice of placing blame on other individuals or events for his conduct, are all indicative of his inability to responsibly deal with his own affairs.” With respect to his financial problems, the Committee stated that it “does not believe that [the applicant] has made any type of sincere attempt to find employment during the last 20 years that would allow him to make payments on this loan obligation.” Moreover, the Committee found that, “[r]egardless of which excuse [the applicant] puts forth for his conduct, it was clear to the Committee that [the applicant] does not accept responsibility for any of his criminal acts.”

Following the issuance of the Committee's February 17, 2009 negative report, we ordered the applicant to show cause why his application for admission should not be denied. The applicant filed a responsive pleading on April 29, 2009. On May 5, 2009, the applicant filed a notice of appeal of a superior court decision affirming the administrative suspension of his driver's license following his October 8, 2008 arrest for DWI Second Offense, a charge of which the Committee was previously unaware. We then remanded this matter to the Committee for consideration of the new information.

Counsel for the applicant informed the Committee that the applicant had been convicted of the DWI Second Offense charge in district court, had appealed that charge and was awaiting a jury trial in superior court. He had also appealed the administrative suspension of his license to the superior court and, subsequently, to this court. Counsel also...