Prager, Matter of

Decision Date15 February 1996
Citation661 N.E.2d 84,422 Mass. 86
PartiesIn the Matter of Harvey PRAGER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

PETITION filed in the Supreme Judicial Court for the county of Suffolk on June 13, 1994; Abrams, J.

Michael E. Mone, Boston, for petitioner.

Nancy E. Kaufman, Assistant Bar Counsel.

Scott Harshbarger, Attorney General, Thomas H. Green, Assistant Attorney General, Edward V. Colbert, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.


LIACOS, Chief Justice.

On June 13, 1994, Harvey Prager applied for admission to the bar of the Commonwealth. The Board of Bar Examiners (board) held a hearing on his application and on January 6, 1995, reported to this court, pursuant to G.L. c. 221 § 37 (1994 ed.), 1 that the applicant is of "good moral character and sufficient acquirements and qualifications and recommends his admission." On June 30, 1995, a single justice of this court reserved and reported the case to the full court for determination. Oral argument was held before the full court on October 3, 1995. At the invitation of the court, bar counsel appeared and took the position that the petition should be denied. We deny Prager's application for admission to the bar with leave to reapply in five years from the date of this opinion.

The record reveals the following facts. 2 Prager was born in 1947, the son of immigrants. He attended Bowdoin College from 1965 to 1969, where he was a member of Phi Beta Kappa and was graduated summa cum laude. From 1971 to 1972, Prager attended Harvard University as a graduate student. While at Harvard, it appears that he began smoking marihuana regularly, which he claims subsequently led him into the illegal sale and distribution of marihuana. 3 Over a period of approximately six years, Prager organized and led a large-scale international drug smuggling operation. Much of the marihuana smuggled into the country came by boat from South America into Maine, New York, and other points along the eastern coast of the United States. Over the course of Prager's dealings, he used several aliases, including "Jack," "John Stead," "Steven Shane," and "Jack Harvey."

Prager testified before the board that he stopped smoking marihuana in 1981, at which time he also ceased his smuggling operation. However, he continued to sell marihuana in the United States for two more years. In 1983, Prager was indicted by a Federal grand jury in the district of Maine. On learning of the indictment, Prager fled the country and lived as a fugitive until he was extradited from Great Britain in 1987. The record is sparse in relation to Prager's activities during the years before 1987. Following his flight from the United States, it appears he spent some time in the Caribbean, where he owned investment property presumably purchased with proceeds from his illegal activities. Also, he owned a $400,000 apartment in Paris, where he met and married his wife. He was known in London, under the name "Harvey Israel," as a reputable art dealer. In 1987, Scotland Yard was investigating a bank robbery when they came upon a safe deposit box identifying Harvey Israel as Harvey Prager. Prager remained incarcerated (in London and the United States) six months while awaiting extradition and trial. 4

On January 29, 1988, Prager pleaded guilty to, inter alia, conspiracy to import into the United States a large quantity of marihuana, possession with intent to distribute a large quantity of marihuana, aiding and abetting the commission of this crime, and conspiracy to possess with intent to distribute in excess of 1,000 pounds of marihuana. He received a suspended sentence with probation for five years on special conditions of probation. 5 These conditions, which Prager helped negotiate, required Prager to reside and maintain employment in Maine, volunteer a minimum of forty-five hours each week toward assisting those with acquired immune deficiency syndrome (AIDS), and to create and maintain a free-standing hospice unit for persons in the terminal stages of AIDS. 6 Prager was unable to develop a free-standing hospice, due in part to his inability as a convicted felon to obtain Medicare certification. 7 In 1989, the sentencing judge modified the terms of Prager's probation. Prager was to provide care in his home to AIDS patients in the terminal stages of the disease. 8 8

In 1991, Prager sought and received permission from the Federal court to apply to the University of Maine School of Law. He enrolled as a full-time student in the fall of 1991. In Prager's absence, nurses cared for Prager's clients in his home during daytime hours. Prager was named to the dean's list in his first year, and was selected as a staff member on the Law Review. He worked for the Cumberland Legal Aid Clinic under the supervision of a professor of law. In 1993, Prager applied for and was accepted to a judicial clerkship for the Supreme Judicial Court of Maine. 9 In August, 1993, Prager was granted permission to complete his third year of law school as a student at Northeastern University School of Law in Massachusetts, and relocated the last of his AIDS clients out of his home in August, 1993. His probationary period ended on October 10, 1993. Prager graduated summa cum laude from the University of Maine School of Law in May, 1994. He began clerking for Associate Justice Howard H. Dana, Jr., in 1994.

Prager applied for admission to the Massachusetts bar in June, 1994. He sat for the bar examination in July, 1994. 10 Having passed the written examination, Prager was invited to appear at an oral interview before the board. A hearing, at which Prager testified, was held on December 22, 1994. 11 The board reported that "Prager has so rehabilitated himself since the time of his criminal activities thirteen years ago that he is of present good moral character," and recommended Prager's admission to the bar of the Commonwealth.

The license to practice law may not be withheld arbitrarily or discriminatorily. Matter of an Application for Admission to the Bar of the Commonwealth, 378 Mass. 795, 392 N.E.2d 533 (1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1980). While deference is given to the decision of the board, this court retains ultimate authority to decide a person's fitness to practice law in the Commonwealth. G.L. c. 221, § 37. See Matter of Allen, 400 Mass. 417, 421, 509 N.E.2d 1158 (1987); Matter of Gordon, 385 Mass. 48, 58, 429 N.E.2d 1150 (1982). As with decisions of reinstatement after disbarment, the inquiry is one of public interest. "The question is not whether the respondent has been 'punished' enough. To make that the test would be to give undue weight to his private interests, whereas the true test must always be the public welfare." Matter of Allen, supra at 421, 509 N.E.2d 1158, quoting Matter of Keenan, 314 Mass. 544, 547, 50 N.E.2d 785 (1943) (Keenan II ).

A prior conviction is not an absolute bar to admission. We have stated that no offense is so grave as to preclude a showing of present moral fitness. Matter of Allen, supra at 421-422, 509 N.E.2d 1158. Matter of Hiss, 368 Mass. 447, 452, 333 N.E.2d 429 (1975). The commission of a felony is, however, conclusive evidence of lack of good moral character at the time of the offense. Keenan II, supra at 549, 50 N.E.2d 785. The test is whether at the present time the applicant has so rehabilitated himself by "[leading] a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions." Matter of Hiss, supra at 452, 333 N.E.2d 429. As stated by the board in the instant case, "the law rightfully requires us to focus upon the question of Prager's rehabilitation. The concept that human redemption is possible and valuable is both well established in law and premised upon long-standing, even ancient traditions." Thus, the issue before us is whether the applicant has sufficiently proved such rehabilitation that he currently possesses the necessary moral character to be admitted to the bar of the Commonwealth. 12

As in a case of reinstatement after disbarment, the burden of showing good moral character after conviction of a felony is on the applicant. See Matter of MacKenzie, S.J.C. No. 81764 (December 22, 1983). See also In re Cason, 249 Ga. 806, 807-808, 294 S.E.2d 520 (1982); In re Application of Davis, 38 Ohio St.2d 273, 275, 313 N.E.2d 363 (1974) (Davis I ); Matter of Jaffee, 311 Or. 159, 163, 806 P.2d 685 (1991), S.C., 319 Or. 172, 874 P.2d 1299 (1994); C.W. Wolfram, Modern Legal Ethics § 15.3.2, at 859 (1986) (discussing burden of proof in bar admission cases). This court has clearly established the standard of rehabilitation required for reinstatement after disbarment. "Whatever the offense for which a judgment of disbarment was entered, the person disbarred has a heavy burden on a subsequent petition for admission to the bar to overcome by evidence the weight of the facts adjudicated by such judgment and to establish affirmatively that since his disbarment he has become 'a person proper to be held out by the court to the public as trustworthy.' " Matter of Hiss, supra at 460-461, 333 N.E.2d 429, quoting Matter of Keenan, 313 Mass. 186, 219, 47 N.E.2d 12 (1943) (Keenan I ). The factors to be considered in reinstatement hearings are as follows: "(1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner's present competence in legal skills" (footnotes omitted). Matter of Hiss, supra at 460, 333 N.E.2d 429.

The test of fitness for reinstatement is two pronged. Not only must a petitioner demonstrate the...

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