Porter v. Bd. of Bar Exam'rs

• Decision Date: 22 April 2022
• Docket Number: SJC-13062
• Citation: 185 N.E.3d 466
• Parties: Lionel PORTER v. BOARD OF BAR EXAMINERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 N.E.3d 466

Lionel PORTER

v.BOARD OF BAR EXAMINERS.

SJC-13062

Supreme Judicial Court of Massachusetts.

April 22, 2022

Lionel Porter, pro se.

Matthew C. Welnicki, Boston, for Board of Bar Examiners.

RESCRIPT

After the Board of Bar Examiners (board) reported that Lionel Porter was not qualified for admission to the Massachusetts bar because of certain character and fitness concerns, Porter petitioned a single justice of this court for review. The single justice dismissed Porter's petition and denied his application for admission to the bar. Porter now appeals. We affirm.

1. Procedural background. Porter graduated from an accredited law school in 1985. He has applied for admission to the Massachusetts bar multiple times, most recently in December of 2013, and, on the bar examination administered in February of 2014, he earned for the first time a passing score. Upon reviewing the information in Porter's application, however, the board determined that an inquiry into his character and fitness to practice law was necessary. The board first interviewed Porter informally, and later appointed a special counsel to conduct a more detailed investigation. After the special counsel submitted his report, the board held a formal evidentiary hearing to determine whether Porter "is of good moral character and sufficient acquirements and qualifications" to warrant a recommendation for admission to the bar. G. L. c. 221, § 37. See S.J.C. Rule 3:01, § 5.1, as appearing in 478 Mass. 1301 (2018); Rule V.2 of the Rules of the Board of Bar Examiners (2018).

Porter, who was represented by counsel at the formal hearing, was the sole witness. The board determined that Porter had not met his burden of establishing that he was qualified for admission. It filed a report of nonqualification with this court containing its factual findings and recommendation that Porter's application be denied. See Rule V.2.7 of the Rules of the Board of Bar Examiners. Porter then petitioned this court for review. See S.J.C. Rule 3:01, § 5.3; Rule V.2.8 of the Rules of the Board of Bar Examiners. A single justice of this court considered the record and Porter's challenges to the board's report and rejected Porter's arguments. Accordingly, the single justice denied Porter's application for admission to the bar, dismissed his petition for review of the board's report, and denied his motion for reconsideration.

2. Factual background. The single justice accepted the board's factual findings. In summary, the evidence established that Porter earned a bachelor's degree in 1966, obtained a master's degree in 1970, and made progress toward a Ph.D. He entered law school in 1981, and graduated in May of 1985.

Following graduation from law school, Porter worked in a variety of capacities. For several years, he worked as a pro bono advocate for the National Association for the Advancement of Colored People (NAACP). While at the NAACP, he reviewed, drafted, and filed discrimination complaints at the Massachusetts Commission Against Discrimination (MCAD). See Matter of Hrones, 457 Mass. 844, 845, 933 N.E.2d 622 (2010). In 2001, Porter was introduced to attorney Stephen Hrones. As Porter described, the two reached a "mutually-beneficial business arrangement," whereby they would solicit prospective clients who had matters pending at the MCAD and share the fees that were generated by that work. But see Mass. R. Prof. C. 5.4 (a), as appearing in 430 Mass. 1303 (1999).

Although he had not been admitted to the bar, Porter represented that while he worked at Hrones's law firm, he handled all the discrimination cases himself, without assistance from Hrones.¹ He acknowledged that he was "perceived as a ‘member of the firm’ both perceptually and in practice." This arrangement, as well as other misconduct, eventually led to disciplinary proceedings against Hrones, as a result of which Hrones was suspended from the practice of law in the Commonwealth. See Matter of Hrones, 457 Mass. at 845, 933 N.E.2d 622. In 2003, a default entered against Porter's client in one of the cases that Porter was handling at the MCAD and, as a result, allegations of case mismanagement and the unauthorized practice of law were leveled against Porter. In addition, Porter missed filing deadlines in other cases and kept client retainer funds for his own personal use. After complaints were filed with the Board of Bar Overseers, Hrones terminated the arrangement with Porter. Porter, however, reported on his 2013 bar application that he had left the firm on his own volition.

Porter's 2013 application also disclosed that he has been a party to a number of civil and criminal matters. Among other things, in 2007, Porter pleaded guilty to operation of an unregistered motor vehicle and admitted to sufficient facts on a charge of assault and battery by means of a dangerous weapon arising out of an attempt to repossess Porter's motor vehicle; he also admitted to sufficient facts in another assault case in 1996. More recently, in 2012, a harassment prevention order was issued against him. In addition, Porter did not disclose a bankruptcy petition that he had filed while his most recent bar application was pending, notwithstanding a board rule that requires disclosures of that sort. See Rule V.1.2 of the Rules of the Board of Bar Examiners.

3. Discussion. While we give due deference to the board's determination, "this court retains ultimate authority to decide a person's fitness to practice law in the Commonwealth." Strigler v. Board of Bar Examiners, 448 Mass. 1027, 1029, 864 N.E.2d 8 (2007), quoting Matter of Prager, 422 Mass. 86, 91, 661 N.E.2d 84 (1996). Here, both the board and the single justice discussed their consideration of Porter's involvement in civil and criminal complaints against him, retention of client funds for personal use, and mishandling of client matters, as well as the incomplete and inconsistent disclosures on his multiple applications for admission to the bar. We, too, have carefully reviewed the record. The board concluded, the single justice accepted, and we agree that in the face of his history of misconduct, Porter has not met his burden of proving by clear and convincing evidence that he has sufficiently rehabilitated himself such that he "currently possesses the necessary moral character to be admitted to the bar of the Commonwealth." Matter of Prager, supra at 92, 661 N.E.2d 84.

To be clear, our focus is on Porter's present fitness to be admitted to the bar, and not his prior conduct. No history of misconduct "is so grave as to preclude a showing of present moral fitness." Matter of Prager, 422 Mass. at 91, 661 N.E.2d 84. The question is whether the applicant has "rehabilitated himself by ‘lead[ing] a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions’ " (citation omitted). Id. at 92, 661 N.E.2d 84. Thus, at this juncture, we focus on Porter's "current attitudes toward this past conduct." See Matter of an Application for Admission to the Bar of the Commonwealth, 431 Mass. 678, 679-680, 729 N.E.2d 1085 (2000).

A significant focus of concern for the board, for the single justice, and for us is Porter's conduct while he worked as a paralegal at Hrones's law firm. As Porter points out, he was not a party to the disciplinary case against Hrones, and therefore he was not precluded from showing that he did not in fact engage in the unauthorized practice of law and other misconduct described in Matter of Hrones, 457 Mass. at 851, 853-854, 933 N.E.2d 622. That said, many of the central facts that were described in the Hrones decision were left undisputed by Porter after the hearing in this case. Porter affirmatively acknowledged, for example, that he signed Hrones's name on an affidavit, accepted clients, negotiated fees, filed complaints, drafted pleadings, conducted discovery, advised clients as to their legal rights, settled cases, and performed other legal work. See id. at 846, 933 N.E.2d 622. There was ample support for the board's determination that Porter's mishandling of clients’ cases at Hrones's law firm led to adverse consequences for clients. In addition, on at least one occasion, Porter kept client retainer funds for personal use. In his testimony before the board, he explained that he kept portions of client retainers: "[B]ecause I was not getting a salary or anything else, there were times when I would use the retainer. I didn't have any money." He also did not dispute that he had engaged in the unauthorized practice of law. In short, Porter did not satisfy the board or the single justice, nor has he satisfied us, that he appreciates the wrongfulness of his earlier misconduct and presently has an understanding of the norms of...