Majorek, Application of

• Decision Date: 24 November 1993
• Docket Number: No. S-34-930003,S-34-930003
• Citation: 244 Neb. 595,508 N.W.2d 275
• Parties: In re Application of John Andrew MAJOREK for Admission to the Nebraska State Bar On Examination.
• Court: Nebraska Supreme Court

Page 275

508 N.W.2d 275

244 Neb. 595

In re Application of John Andrew MAJOREK for Admission to the Nebraska State Bar On Examination.

No. S-34-930003.

Supreme Court of Nebraska.

Nov. 24, 1993.

Syllabus by the Court

1. Rules of the Supreme Court: Attorneys at Law. Neb.Ct.R. for Adm. of Attys. 2 (rev.1992) requires an applicant for admission to the Nebraska State Bar to show, among other things, that the applicant is of good moral character.

2. Rules of the Supreme Court: Attorneys at Law. The primary purposes of character and fitness screening before admission to the Nebraska State Bar are to assure the protection of the public and to safeguard the justice system.

3. Rules of the Supreme Court: Attorneys at Law. The public interest requires that the public be secure in its expectation that those who are admitted to the Nebraska State Bar are worthy of the trust and confidence clients may reasonably place in them.

4. Attorneys at Law. An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them.

5. Rules of the Supreme Court: Attorneys at Law. A record manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant for admission to the Nebraska State Bar may constitute a basis for denial.

6. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court, and only the Nebraska Supreme Court, is invested with the power to admit persons to the practice of law and to fix qualifications for admission to the Nebraska State Bar.

7. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court has the responsibility to adopt and implement systems designed to protect the public and safeguard the justice system by assuring that those admitted to the Nebraska State Bar are of such character and fitness as to be worthy of the trust and confidence such admission implies.

8. Rules of the Supreme Court: Attorneys at Law. False, misleading, or evasive answers to Nebraska State Bar application questions may be grounds for a finding of lack of requisite character and fitness.

9. Rules of the Supreme Court: Attorneys at Law. The ultimate test of present moral character, applicable to original admissions to the Nebraska State Bar, is whether, viewing the applicant's character in the period subsequent to the applicant's misconduct, the applicant has been so convincingly rehabilitated that it is proper that the applicant become a member of a profession which must stand free from all suspicion.

10. Rules of the Supreme Court: Attorneys at Law: Proof. Payment of a fine or service of a sentence imposed, and not committing further crimes, standing alone, do not prove rehabilitation.

11. Rules of the Supreme Court: Attorneys at Law: Proof. Merely showing that an individual is now living as and doing those things the individual should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has taken a useful and constructive place in society.

Patrick W. Healey, Lincoln, for applicant.

James J. DeMars, of DeMars, Gordon, Olson, Recknor & Shively, Lincoln, for Nebraska State Bar Com'n.

HASTINGS, C.J., and BOSLAUGH, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

The applicant, John Andrew Majorek, born September 28, 1959, challenges the recommendation of the Nebraska State Bar Commission to this court that he not be permitted to take the bar examination because of his failure to establish that he presently possesses the proper character and fitness to practice law. We accept the commission's recommendation and thus rule that the applicant be, and hereby is, denied permission to take the bar examination until such time as this court may determine otherwise on further application filed directly in this court in this proceeding.

Neb.Ct.R. for Adm. of Attys. 2 (rev.1992) requires an applicant for admission to the bar to show, among other things, that the applicant is of "good moral character." Appendix A to said rules provides, in relevant part:

PURPOSE. The primary purposes of character and fitness screening before admission to the bar of Nebraska are to assure the protection of the public and to safeguard the justice system. The attorney licensing process is incomplete if only testing for minimal competence is undertaken. The public is adequately protected only by a system that evaluates character and fitness as those elements relate to the practice of law. The public interest requires that the public be secure in its expectation that those who are admitted to the bar are worthy of the trust and confidence clients may reasonably place in their attorneys.

....

STANDARD OF CHARACTER AND FITNESS. An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them. A record manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant may constitute a basis for denial of admission.

RELEVANT CONDUCT. The revelation or discovery of any of the following should be treated as cause for further inquiry before the bar commission decides whether the applicant possesses the character and fitness to practice law:

1. misconduct in employment;

2. acts involving dishonesty, fraud, deceit, or misrepresentation;

3. abuse of legal process, including the filing of vexatious lawsuits 4. neglect of financial responsibilities;

5. neglect of professional obligations;

6. violation of an order of a court, including child support orders;

7. evidence of mental or emotional instability;

8. evidence of drug or alcohol dependence or abuse;

9. denial of admission to the bar in another jurisdiction on character and fitness grounds;

10. disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.

USE OF INFORMATION. The bar commission will determine whether the present character and fitness of an applicant qualify the applicant for admission. In making this determination through the processes described above, the following factors should be considered in assigning weight and significance to prior conduct:

1. the applicant's age at the time of the conduct;

2. the recency of the conduct;

3. the reliability of the information concerning the conduct;

4. the seriousness of the conduct;

5. the factors underlying the conduct;

6. the cumulative effect of the conduct or information;

7. the evidence of rehabilitation;

8. the applicant's positive social contributions since the conduct;

9. the applicant's candor in the admissions process;

10. the materiality of any omissions or misrepresentations.

In responding to an inquiry on the bar application form as to whether he had been disciplined by a school, college, or university, the applicant revealed that he had been disciplined in 1991 for making personal use of student funds while attending law school. In response to another question, the applicant disclosed that on April 27, 1992, he had been charged with speeding while his operator's license was suspended and with providing false information to an officer.

In investigating the applicant, the commission discovered two matters the applicant had not made known, namely, that he had encountered the criminal justice system in May 1982 for writing a bad check and that on June 25, 1991, he had been charged with taking merchandise without making payment.

The first of the aforedescribed misdeeds occurred on March 20, 1991, apparently during the applicant's second year of law school when, as treasurer of the student chapter of a lawyers' association, he wrote a check to himself in the amount of either $300 or $350 on the chapter's account. Within approximately a week, the applicant repaid the amount he had taken by mailing a deposit of his own funds to the chapter account. At about the same time, without having been confronted by anyone, the applicant notified the chapter president of his actions.

The applicant explained that in December 1990, his father suffered a paralyzing stroke while visiting in Washington, D.C. His father remained hospitalized and underwent speech and physical therapy until sometime in April 1992. At this time, the applicant lived and attended law school in Lincoln, worked as a law clerk for an Omaha law firm, and took responsibility for managing his parents' household in Omaha until they returned. In addition, he served as president of a student organization and was active in political campaigns.

While all this was occurring, the transmission in the applicant's automobile "went out." Being between paychecks, he tried to contact several friends to borrow the money to repair the vehicle, as he felt that because of his parents' situation he could not borrow from them. After twice unsuccessfully trying to call the chapter president for help, he came to feel that he was between a rock and a hard place, or in a Catch-22 situation, stating: "If I did not repair my car, I could not work, and could not get to classes. If I did not work, I could not earn money to repair my car."

When the applicant was questioned by a commission member, the following exchange occurred:

[Commissioner]: Do you feel that what you have told us about this situation excuses your action?

[Applicant]: Oh, no. There is never an excuse for that action. I think there are mitigating factors that perhaps should enlighten on why I acted the way I did. No, I never expect to be excused for the wrongs that I have done.

[Commissioner]: Your continued use of the word "borrowing" gives me great concern because what you did was not borrow funds. You were embezzling funds.

[Applicant]: I realize that the act is an act of embezzlement, sir, and I do accept--I think as I said earlier, that I used that word to explain the state of my...