Board of Law Examiners of State v. Stevens

• Citation: 868 S.W.2d 773
• Decision Date: 05 January 1994
• Docket Number: No. D-3694,D-3694
• Parties: The BOARD OF LAW EXAMINERS OF the STATE of Texas, Petitioner, v. Edward H. STEVENS, III, Respondent.
• Court: Supreme Court of Texas

Page 773

868 S.W.2d 773

The BOARD OF LAW EXAMINERS OF the STATE of Texas, Petitioner, v. Edward H. STEVENS, III, Respondent.

No. D-3694.

Supreme Court of Texas.

Jan. 5, 1994.

Kevin Wayne Cole, C. Robert Heath, Austin, for petitioner.

Nicolai von Kreisler, Susan J. Haney, Austin, for respondent.

CORNYN, Justice, delivered the opinion of the Court, in which all Justices join.

This controversy between an applicant for admission to the Texas Bar and the Board of Law Examiners ("Board" or "BLE") requires us to interpret the minimum standards for moral character and fitness contained in the TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT, and to clarify the process by which courts should review Board decisions. We hold that the court of appeals misinterpreted the Disciplinary Rules and misapplied the standard of review. Accordingly, we reverse the judgment of the court of appeals and affirm the Board's decision.

I

Edward H. Stevens, III, who was licensed to practice law in Mississippi in 1969, applied in August 1985 to join the Texas Bar. The bar application required Stevens to disclose whether he had "any debts, including student loans, which are more than 90 days past due." Although Stevens had failed to file a single federal income tax return since 1972, would not file one in 1986, and owed taxes, penalties, and interest to the Internal Revenue Service, he did not disclose this information on his bar application. Stevens did disclose two unsatisfied judgments. While his application was pending, a third judgment was entered against him on account of an overdue debt. The Board nevertheless learned of Stevens's failure to file tax returns, held a hearing, and decided in 1988 that Stevens did not possess the moral character and fitness necessary to qualify for membership in the Texas Bar. Stevens sought judicial review of the Board's decision in a Travis County district court, which held that the Board's decision was not supported by "substantial evidence," ¹ and remanded the case to the Board for further proceedings. The court of appeals affirmed. 850 S.W.2d 558.

At the hearing before the Board, Stevens testified that he did not have the means to satisfy the judgments against him, but he anticipated that he would pay these debts out of any inheritance he would receive from his mother.

Stevens also disclosed that the only income tax he had paid in the fourteen years from 1972 to 1986 was that withheld by his employer for the five years he worked for the Army Corps of Engineers. He was in private practice throughout the remainder of this period, but paid no income tax and filed no returns. Stevens asserts that he "did not intend" to defraud the government, but claimed that an accountant to whom he had given his tax documents in 1973 failed to prepare his returns. By the time Stevens recovered his tax-related papers, he was two years behind, and "afraid" to file the returns late.

In 1986, about the time he filed his bar application, Stevens acknowledged that there would be "a day of reckoning." By the time the Board held its hearing in 1988, Stevens had filed a late return for 1986 and returns for the seven previous years. He expressed his desire "to get straight with the IRS," and testified that he had filed his returns before he was contacted by the IRS. He presented evidence that he paid his taxes for seven of the fourteen years, but that he continues to dispute the amount of interest and penalties he owes for three of the seven years. The federal government has not prosecuted him.

The Board informed Stevens of its adverse decision by letter, in which it also explained its decision. ² The Board concluded that Stevens does not possess the necessary good moral character on two grounds--that he "has demonstrated a marked disrespect for the law" and he "has demonstrated a longstanding lack of financial responsibility." The trial court held that this decision was not supported by "substantial evidence," and the court of appeals affirmed, stating:

We sympathize with the difficulty the Board faces in assessing such an ambiguous quality as "good moral character." On the state of the record presented to the trial court, however, we hold Stevens met his burden of demonstrating that the Board did not reasonably conclude his misconduct would probably result in injury to future clients, the obstruction of justice, or a disciplinary violation.

850 S.W.2d at 564.

II

Justice Frankfurter once observed that "all the interests of [humanity] that are comprised under the constitutional guarantees given to 'life, liberty and property' are in the professional keeping of lawyers." Schware v. Board of Bar Exams., 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring).

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. * * * A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

TEX.DISCIPLINARY R.PROF.CONDUCT, pmbl. para. 1. (1989), reprinted in TEX.GOV'T CODE ANN., tit. 2, subtit. G, app. A (Vernon Supp.1994) (State Bar Rules art. X, § 9). ³ By the nature of their profession, lawyers occupy a position of public trust and confidence, and have a concomitant obligation to refrain from misbehavior and to carry out their professional duties with reasonable skill and personal integrity.

It would be small comfort to the public if the only ethical standard for admission to the Texas Bar were an absence of convictions involving serious crimes and crimes of moral turpitude. Rather than mere absence of gross misbehavior, bar admission affirmatively requires "good moral character" and "fitness" to practice law. RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(a) (1992). TEXAS DISCIPLINARY R.PROF.CONDUCT terminology (1989) expressly defines "fitness" as "those qualities ... that enable a person to discharge a lawyer's responsibilities to clients in conformity with [these rules]. Normally a lack of fitness is indicated most clearly by a persistent inability to discharge, or unreliability in carrying out, significant obligations." See also, RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b) (1992) (purpose of assessment of good moral character is "to exclude from the practice of law those persons possessing character traits ... [that] usually involve either dishonesty or lack of trustworthiness in carrying out responsibilities").

The Board of Law Examiners supervises bar admissions and thereby plays a key role in maintaining the integrity and character of the Texas Bar. By statute, law examiners must be licensed to practice law in Texas and have practiced law or served as a judge for at least ten years. TEX.GOV'T CODE ANN. § 82.001 (Vernon 1988); TEX. CONST. art. 5, § 2. This court has vested the Board with considerable discretion when applying promulgated admission standards to evaluate applicants.

We recognize the difficulty inherent in assessing "good moral character" to practice law. As the court of appeals emphasized, "good moral character," standing alone, is "easily adapted to fit personal views and predilections, [and] can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." 850 S.W.2d at 560 (quoting Konigsberg v. State Bar, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1967)). However, the Board of Law Examiners is not without guidance in evaluating "good moral character." TEXAS GOV'T CODE ANN. § 82.028(c) (Vernon 1988), which authorizes the Board to conduct investigations, expressly circumscribes the power of the Board in making this determination:

The board may not recommend denial of a license and the supreme court may not deny a license to an applicant because of a deficiency in the applicant's moral character or fitness unless:

(1) the board finds a clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client or obstruct the administration of justice if the applicant were licensed to practice law....

TEX.GOV'T CODE ANN. § 82.028(c) (Vernon 1988). The RULES GOVERNING ADMISSION TO THE BAR OF TEXAS, promulgated under TEX.GOV'T CODE § 82.022(b) (Vernon 1988), have "the same effect as statutes," see State Bar v. Wolfe, 801 S.W.2d 202, 203 (Tex.App.--Houston [1st Dist.] 1990, no writ), and provide further guidance:

Good moral character is a functional assessment of character and fitness of a prospective lawyer. The purpose of requiring an Applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the [Disciplinary Rules]. These character traits usually involve either dishonesty or lack of trustworthiness in carrying out responsibilities. There may be other character traits that are relevant in the admission process, but such traits must have a rational connection with the Applicant's present fitness or capacity to practice law and accordingly must relate to the legitimate interests of Texas in protecting prospective clients and in safeguarding the system of justice within Texas.

RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b) ⁴ (1992) (emphasis added). These rules make it clear that the Board must be guided in its assessment by (1) the TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT and (2) legitimate state interests in protecting prospective clients and the Texas justice system. Because the Board must find a "clear and rational connection" between the applicant's character trait and the threatened harm, TEX.GOV'T CODE § 82.028(c) (Vernon 1988), it is not permitted to make arbitrary or unreasoned judgments. See, e.g., Schware v. Board of Bar...