Bailey v. Bd. of Bar Examiners, DOCKET NO: Bar-12-14
| Decision Date | 18 April 2013 |
| Docket Number | DOCKET NO: Bar-12-14 |
| Parties | F. LEE BAILEY v. BOARD OF BAR EXAMINERS |
| Court | Maine Supreme Court |
This matter is before the Court on the petition of F. Lee Bailey for admission to the Maine bar. The petition is brought pursuant to Rule 9(d)(6) of the Maine Bar Admission Rules following a decision by the Maine Board of Bar Examiners that Bailey had failed to demonstrate, to the clear and convincing evidence standard, that he had sufficient present good character and fitness to qualify for admission to the Maine bar.1
The Court heard the matter on March 6 and 7, 2013. Following briefing by Bailey and the Board of Bar Examiners, the matter is now before the Court for decision. The record for decision includes the record before the Board of Bar Examiners, the additional testimony and exhibits presented in the two days of hearings before this Court, and many reported decisions of state and federal courtsthat have addressed matters related to Bailey's conduct that are relevant to his character and fitness to be a member of the bar. All of the exhibits and records at issue were admitted either by agreement or without objection.2 The parties also agreed that the Court could consider the reported decisions regarding the issues in this matter, although some of the fact-findings and conclusions in those decisions are contested.
Before the litigation that led to the character and fitness issues now in contest arose, Bailey had what the Board of Bar Examiners characterized as a "long and brilliant legal career," although he had been subject to disciplinary actions in Massachusetts in 1964, Florida in 1967, and New Jersey in 1968, all involving efforts to generate pretrial publicity of his point of view representing defendants in criminal cases. See In re Bailey, 273 A.2d 563, 564-65 (N.J. 1971); In re Bailey, No. 69934, Single Justice Order (Mass. Sept. 16, 1970) (Kirk, J.) (unreported).3 Bailey maintained a nationwide law practice and was a defenseattorney in many high profile criminal cases.4 He has published many books and articles related to trial practice and criminal defense, regularly taught and lectured at lawyer and law enforcement officer training programs, and has been involved in efforts to promote greater use of lie detector testing and to aid prisoners in transitions from prison life to the community.
Bailey attended Harvard College for two years, served for more than four years as a naval aviator, returned to college briefly, and then was admitted to Boston University Law School, graduating in 1960. He took and passed the Massachusetts bar exam, was admitted to the Massachusetts bar the same year and began practicing law, primarily focusing on criminal defense. In the mid-1980s, he shifted the home base of his practice from Massachusetts to Florida, took and passed the Florida bar exam at age fifty-five, and was admitted to the Florida bar in 1989.
Bailey became involved in a bar discipline proceeding stemming from his representation of a client in a drug prosecution and related asset forfeitureproceeding, which led to his disbarment in Florida in 2001, with an opportunity to apply for readmission in five years. The Florida Bar v. Bailey, 803 So.2d 683, 695 (2001). The Florida Supreme Court's order, addressing the terms of Bailey's disbarment, stated:
By this disbarment, Bailey's status as a member of The Florida Bar shall be terminated and he may not reapply for readmission for a period of five years, and then he may "only be admitted again upon full compliance with the rules and regulations governing admission to the bar." R. Regulating Fla. Bar 3-5.1(f). This includes retaking the Florida bar examination, complying with the rigorous background and character examination, and demonstrating knowledge of the rules of professional conduct required of all new admittees.
Bailey was then reciprocally disbarred in Massachusetts, In re Bailey, 786 N.E.2d 337 (Mass. 2003), and in the federal courts with jurisdiction in Massachusetts. In re Bailey, 450 F.3d 71 (1st Cir. 2006). The disbarment proceedings will be discussed in greater detail later in this order.
After his disbarment, Bailey resided in Massachusetts and Florida, and then began residing in Maine in 2010. In February 2012, at age seventy-eight, he took and passed the Maine bar exam. He then applied for admission to the bar. The Maine Board of Bar Examiners, after a hearing, concluded that, because of his disbarments in Florida and Massachusetts, his failure to acknowledge thewrongfulness of his past misconduct, conflicting statements he had given regarding his state of residence between 2002 and 2010, concern about his possible avoidance of state and federal income taxes in the years before and after his disbarment, and incomplete answers on his bar admission application regarding past disciplinary actions, past and pending civil litigation, corporations in which he held an interest and defaults on debts, Bailey had not demonstrated sufficient good character and fitness to qualify for admission to the Maine bar.
As authorized by M. Bar Admission R. 9(d)(6), Bailey has petitioned this Court for a finding of good character and fitness to allow him to be admitted to the Maine bar.
In Maine, an individual may be admitted to the practice of law, if the individual otherwise qualifies for admission, even if the individual has been disbarred in another state and that disbarment remains in effect. In re Hughes, 594 A.2d 1098, 1099 (Me. 1991). Contra Fla. Bd. of Bar Exam'rs re Webster, 3 So. 3d 1058 (Fla. 2009); Fla. Bd. of Bar Exam'rs re Higgins, 772 So. 2d 486, 487 (Fla. 2000) (). See also M. Bar Admission R. 9A(a) (an applicant who is disbarred or suspended from practice in another jurisdiction is not eligible for conditional admission in Maine).
The criteria for admission to practice of an individual who has been disbarred in another state are the same as the criteria for reinstatement to active practice of an individual who has been disbarred in the State of Maine. In re Hughes, 594 A.2d at 1100-1101. See also Bd. of Overseers of the Bar v. Campbell, 663 A.2d 11, 13 (Me. 1995).
"[B]ecause a disbarred lawyer seeking reinstatement has once proved unworthy of membership in the legal profession, Maine Bar Rule 7(o) imposes a much greater burden on that candidate for reinstatement than upon a person seeking admission as an original matter. To be restored to membership in the bar after having been disqualified, the petitioner . . . shall have the burden of demonstrating the moral qualifications, competency and learning in law required for admission to practice law in this State, and that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.
In re Hughes, 594 A.2d at 1101 ) (emphasis in original).6
To qualify for admission or reinstatement, an individual who has been disbarred must demonstrate, to the clear and convincing evidence standard, that thecriteria established by the Court have been met. Campbell, 663 A.2d at 12-13; In re Hughes, 594 A.2d at 1101.
When the Board of Bar Examiners, for a person disbarred in another state and not previously admitted to practice in Maine, or the Board of Overseers of the Bar, for a person disbarred in Maine, has determined that the individual has failed to demonstrate sufficient good character and fitness to be admitted or reinstated to the practice of law, the individual seeking admission or reinstatement may petition to the Supreme Judicial Court to be admitted or reinstated. Pursuant to M. Bar Admission R. 9(d)(6)(C) or M. Bar R. 7.2(b)(3), the matter is then assigned to a single justice of the Supreme Judicial Court to hear and decide de novo the question of qualification and good character and fitness to be admitted to the practice of law. In the proceeding before the single justice, the Court can consider the record developed before the Board of Bar Examiners, M. Bar Admission R. 9(d)(6)(C)(ii), and additional evidence presented at the hearing in reaching its decision.
This matter is now before the Court to decide whether Bailey has proved, by clear and convincing evidence, that he has the present good character and fitness tobe admitted to the practice of law and that his admission to practice will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest according to the standards discussed above.
In stating the history of this case, and in making its findings, it is the Court's intent to give full faith and credit to the judgments of courts of other jurisdictions that have addressed the issues relevant to this proceeding, often after much more extensive hearings than have occurred in this bar admission proceeding. The goal to give full faith and credit to the judgments of courts in other jurisdictions may appear to be imperfectly achieved because of the many judgments that must be considered, their sometimes differing emphasis and results, and the necessity that the findings here must be briefer than a recitation of the findings and conclusions of those other judgments. Following is a list of the opinions, organized by date, earliest to latest, that this Court has attempted to synthesize in that portion of the relevant history of this matter that was addressed...
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