Capace, Application of, 1519-A

• Decision Date: 21 June 1972
• Docket Number: No. 1519-A,1519-A
• Parties: In re Application of Charles R. CAPACE. ppeal.
• Court: Rhode Island Supreme Court

Page 632

291 A.2d 632

110 R.I. 254

In re Application of Charles R. CAPACE.

No. 1519-Appeal.

Supreme Court of Rhode Island.

June 21, 1972.

Guy J. Wells, Providence, for petitioner.

James H. Barnett, Providence, for the public's interest.

OPINION

KELLEHER, Justice.

This petition seeks a reversal of a decision of the Board of Bar Examiners which refused to recommend the admission of Charles R. Capace to the practice of law in this state.

The petitioner is 26 years old. He is a graduate of Brown University and Boston College Law School. In August, 1970, he filed with the clerk of this court an application to take the bar examination ¹ that was scheduled to be held late in the following month. At that time, he was employed by Rhode Island Legal Services, Inc. Sometime in mid-September, he appeared before the board to present the academic credentials which would verify his college and law school accomplishments. On this occasion, the board noted that in 1967 Capace had taken the Law School Aptitude Test twice-once in February and again in April. The petitioner was asked if he personally had taken the test each time it had been given. Capace gave an affirmative reply. The board then revealed that it had information which purported to show that a Brown classmate of Capace, Sullivan by name, had taken the second L.S.A.T. The petitioner was told that he could take the examination but that the matter of the second L.S.A.T. would be further investigated. Subsequently, on October 30, 1970, petitioner conferred with the chairman of the board and authorized the testing service to release the test papers to the board. On this occasion he once again declared that he had taken the second L.S.A.T.

Later, in November, he filed a petition in which he alleged that the September statements he gave the board were the result of his having been 'ambushed' because the examiners had failed to afford him procedural due process. Capace also stated that if the board had given him adequate notice of the charge made against him, he would have informed the board that, after applying for the second L.S.A.T., he received an unconditional promise from an official at Boston College Law School that he would be a member of the incoming freshman class. Consequently, he premitted his classmate Sullivan to make use of the second application merely to afford Sullivan an opportunity to see how he would fare on the test. Apparently, Sullivan's forte was the objective type test such as the L.S.A.T. ²

On March 22, 1971, the board held an extensive hearing relative to the circumstances and the events surrounding the two tests. The board at this time was composed of three members. The member who had initially received the information about Sullivan and the second test disqualified himself from considering the character aspect of Capace's application. The fifth member did not participate because Capace had consulted with him on this matter prior to the examiner's appointment to the board.

The petitioner was represented by counsel. Evidence was adduced which sought to show that Capace's application for the second L.S.A.T. had invoked a needless expenditure of money because of the assistant dean of the law school's assurance to Capace concerning the fall freshman class. The assistent dean of the Boston College Law School appeared and answered questions as to his contact with Capace during the time his application for admittance was pending at that institution. Other witnesses testified as to petitioner's good character.

At the time of the March hearing, Sullivan was on active duty with the army in Vietnam. The board filed a decision in August, 1971, in which it referred to a certain portion of the dean's testimony and then went on to say that it did not believe Capace had been guaranteed a spot in the class of '70. It also expressed regret that it had not been able to hear Sullivan's version of what had transpired in the spring of 1970. The board, however, did comment adversely on petitioner's credibility. It then declared that, because of the false statements made by Capace in September and October, 1970, it did not consider that he possessed the type of character which must be demonstrated by an applicant who wishes to practice law. This petition was filed as a result of that decision.

When the appeal was pending before us, we were informed that Sullivan had returned to the United States. In January, we entered an order remanding the case to the board with a direction to reopen the case for the purpose of taking Sullivan's testimony and a redetermination of Capace's fitness in the light of that testimony. In re Capace, R.I., 284 A.2d 597 (1972). Sullivan, now a resident of New York, appeared before the board in March, 1972. He told the board that he had taken the second L.S.A.T. at the request of Capace because of Capace's concern about his being admitted to Boston College plus his desire for admittance to the law school at Cornell University. Sullivan agreed that he had looked upon the test as a challenge to match his past successes but he also maintained that he submitted to the day-long examination in an effort to help Capace. This witness conceded that in 1967 he had told an attorney for a classmate charged with the possession of marijuana of his involvement with Capace and the second L.S.A.T. because he wished to discredit Capace who, he thought, would testify as a...