Green, In re

• Decision Date: 15 March 1983
• Citation: 464 A.2d 881
• Parties: In re John J. GREEN, Jr. . Submitted:
• Court: Supreme Court of Delaware

Page 881

464 A.2d 881

In re John J. GREEN, Jr.

Supreme Court of Delaware.

Submitted: March 15, 1983.

Decided: July 26, 1983.

On appeal from the Board of Bar Examiners of the State of Delaware. affirmed.

Lawrence M. Sullivan (argued); Brian J. Bartley, Wilmington, for applicant.

Howard M. Handelman (argued), Bayard, Brill & Handelman, P.A., A. Gilchrist Sparks, III, Morris, Nichols, Arsht & Tunnell, Victor F. Battaglia, Biggs & Battaglia, Wilmington, for Board.

Before HERRMANN, C.J., and McNEILLY and MOORE, JJ.

PER CURIAM:

John J. Green, Jr., a Maryland lawyer, appeals a decision of the Delaware Board of Bar Examiners (the Board) denying him admission to our Bar because of his failure to disclose to the Board several non-public ethical complaints filed against him by the Attorney Grievance Commission of the State of Maryland (the Maryland Commission). After investigation and a full evidentiary hearing the Board concluded that Green failed to satisfy the requirements of Rule 52(a)(1) of this Court as to his good moral character and reputation. ¹ Green raises several issues, basically as follows:

1) The duty of candor imposed by Board rule was not applicable to him.

2) The Board's notice to Green of the hearing on his application did not adequately advise him of the subject matter under investigation.

3) The Board's findings as to Green's lack of candor, and its resultant conclusion that he did not satisfy the admissions requirements of the Delaware Bar, are not supported by the record.

We have carefully examined each of these contentions, and for the reasons hereafter stated, find them without merit. Accordingly, we affirm.

I.

On April 30, 1982, Green filed a sworn application for admission to the Delaware Bar under Supreme Court Rule 53. ² It was complete in form except for the certificate of a preceptor. When given, this certificate embodies the following representations of the preceptor to the Board under its Rule BR-52.9(b):

(1) That he personally knows the applicant or has conducted a reasonably comprehensive personal interview with the applicant before agreeing to act as his preceptor;

(2) That he has sufficient personal knowledge of the applicant's background, or has made a reasonable investigation into the applicant's background from independent sources, other than the applicant or his family, such that the required certificate can be given freely and without any reservation;

(3) That he has personally reviewed the application and after discussion with the applicant has reasonably assured himself that the application is factually accurate and contains no omission of any fact required to be disclosed therein.

The preceptor also must disclose the basis of his knowledge upon which the certificate is given. Thus, the role of a preceptor is vital to the admissions process, and is an important responsibility of one undertaking it. His diligence is critical to the proper performance of the Board's work, and from the applicant's standpoint, the preceptor is both an advisor and mentor.

Four days before filing his application, Green first met with James D. Griffin, Esquire, a prominent member of the Sussex County Bar, to ask Mr. Griffin to be his preceptor. Acting in a highly responsible and commendable manner, Mr. Griffin stated that because the deadline for filing the application was May 1, it would be impossible for him to give the required certificate by that date in light of the preceptor's duty to investigate the applicant's character and reputation. During this first meeting, Mr. Griffin reviewed Green's sworn application. It contained the following question and answer:

"31. Is there any other incident in your background, not otherwise referred to in the answers to this Questionnaire, which may have a bearing upon your character or fitness for admission to the Bar?

No." (Emphasis added).

Mr. Griffin stated that he would continue to investigate Green's background, but at no point during this meeting did the applicant disclose the existence of any facts which would suggest that he had been the subject of ethical complaints in the State of Maryland.

After this conference Mr. Griffin contacted the Maryland Commission, as a routine matter, to request information which might assist him in making the certification as to Green's good moral character and reputation. Counsel to the Maryland Commission advised Mr. Griffin that a waiver from Green was necessary before the Commission could release any information in its files. Thereafter, Mr. Griffin wrote the applicant, requesting "a waiver, addressed to the Commission waiving your right to confidentiality and directing them to release all information involving past or pending charges, if any, which might exist in that office." (Emphasis added). In response Green submitted a carefully worded waiver authorizing the Maryland Commission only "to advise Mr. James D. Griffin, Esq., as to whether or not there have been any charges, past or pending, made by this office against me to the Maryland Court of Appeals and as to whether at any time my license to practice law in Maryland has been suspended, revoked, or if there have been any public sanctions issued against me." (Emphasis added).

Based on this waiver the Maryland Commission informed Mr. Griffin that there were no public sanctions issued against the applicant, nor any charges against him, past or pending, in the Maryland Court of Appeals, but that because the waiver supplied was limited to public matters the Commission could not inform Mr. Griffin of any other complaints. It required a broader waiver to do so. Mr. Griffin then obtained from the applicant, and delivered to the Maryland Commission, a broad and unequivocal waiver of the type needed to procure full disclosure of Green's record. In response to this second waiver, the Maryland Commission informed Mr. Griffin of a series of five complaints involving alleged unethical conduct by Green. One complaint resulted in a private reprimand; three resulted in a warning issued by the Commission's bar counsel; and one complaint, involving a charge of improper withdrawal as counsel, was still pending.

Following these disclosures, the Board conducted a further investigation and ordered a hearing into the matter of Green's character. In his submissions to the Board Green offered explanations which the Board found to be "disingenuous".

Based on the evidence given by the applicant, the Board found that:

"Mr. Green's lack of candor and forthrightness with respect to the Maryland ethics charges has manifested itself in the following critical respects:

a. Although he believed that the Board required disclosure of the Maryland ethics charges in response to Question 31 of his application, in order to assess his character or fitness for admission to the Bar, Mr. Green intentionally did not disclose that information in response to that question;

b. After having been advised by Mr. Griffin that under the Rules of the Board he could not execute the necessary certificate of good character and reputation as requested by Mr. Green without having made an investigation into his background, Mr. Green intentionally did not tell Mr. Griffin of the existence of the Maryland ethics charges;

c. In response to a written request by Mr. Griffin seeking a waiver of confidentiality of all information involving past or pending charges against Mr. Green in the office of the Maryland Commission, Mr. Green submitted an artfully drawn waiver drafted in a way he knew would not permit the disclosure of the Maryland ethics charges; and

d. At the hearing, Mr. Green offered testimony attempting to justify the foregoing instances of lack of candor on grounds that were neither credible nor forthright.

In his testimony at the hearing and in the petition he filed on the day of the hearing (Petitioner's Exhibit 1), Mr. Green has sought to explain his failure to disclose the Maryland ethics charges in response to Question 31 of his application on three grounds:

a. It was the feeling of the Petitioner [Mr. Green] that the matters before the Maryland Attorney Grievance Commission did not have a bearing upon the Petitioner's character or fitness;

b. Your Petitioner further felt that to respond in the affirmative to Question 31 would imply that the Petitioner's prior actions had been unethical and an indication of bad character; and

c. Your Petitioner also assumed that in the ordinary due course of processing the application, that inquiry to the applicant's home state Attorney Grievance Commission would be made and that any questions raised would be properly and fairly reviewed, thereby making an affirmative answer to Question 31 superfluous.

* * * After hearing the testimony the Board finds these explanations to be disingenuous."

II.

We begin with certain basic principles. This Court, alone, has the responsibility for licensing and disciplining persons admitted to practice in Delaware. This tenet is of historic proportions, having been transplanted to Delaware by the colonists. It is based on the concept, taken from England, that the courts possess the exclusive right to govern the practice of law. Delaware Optometric Corporation v. Sherwood, Del.Supr., 128 A.2d 812, 816 (1957); Delaware State Bar Association v. Alexander, Del.Supr., 386 A.2d 652, 654 (1978).

Moreover, the interest of this State in matters pertaining to the admission and regulation of lawyers practicing before our courts is essential to the primary governmental function of administering justice, and in meeting our obligation to protect the public by assuring and maintaining high standards of conduct of persons admitted to this Bar. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423,...