ADM-2009-024, Application of G.W.

The applicant, G.W., seeks admission to the New

Thomas V. Trevethick ___________________________

application. file briefs or memoranda, and oral argument was held. We now deny the

Sup. Ct. R. 42(5)(k). Thereafter, both parties were permitted to

THE SUPREME COURT OF NEW HAMPSHIRE Character and Fitness. and James L. DeHart, general counsel, of Concord, orally, for the Committee on

the applicant.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as student loans.” At the time of the hearing, the applicant was living in his p. 2 and passed the bar over the past 20 years and his failure to have paid off his opportunity to address the concerns expressed by the Committee. See injured in an automobile accident as an excuse for his failure to have taken bar. The applicant requested a hearing at which he would have the The Committee found that “[the applicant] used the fact that he was subsequently submitted a report recommending that he not be admitted to the examination. In May 2008, the Committee interviewed the applicant and The applicant was ultimately successful on the February 2008 bar

42B(VII)(14). Ct. R. 42B(VII)(11), and inability to handle his own affairs, see Sup. Ct. R. of criminal acts, see $138,471.42. Sup. Ct. R. 42B(VII)(6), financial irresponsibility, see Sup. As grounds to deny his admission, the Committee cited the applicant’s history the reported debt owed to the U.S. Department of Education had increased to of the hearing and concluding that the applicant had failed to meet his burden. $40,000 in student loans. By the time of his November 27, 2007 application, 2009, the Committee submitted a second negative report, detailing the results On his initial application, dated November 30, 1991, he noted approximately R. his brief in this matter, the applicant disclosed various financial obligations. 42(5)(j). That hearing was conducted in January 2009. On February 17, 2004 conviction for driving while intoxicated (DWI). In addition, according to Sup. Ct. of a restraining order; (3) a 2001 criminal threatening conviction; and (4) a Caledonia County (Vermont) District Court in 1999 for violating the conditions “pretended to be a robber” at a store in North Conway; (2) six convictions in stemming from an incident on April Fools’ Day, 1993, when the applicant several criminal convictions to the Committee: (1) a reckless conduct conviction New Hampshire bar examination seven times. During this period, he reported by the parties. Between 1991 and 2007, the applicant applied to sit for the The following facts are either evidenced in the record or are not disputed

witness credibility and resolution of disputed questions of fact. Id As a general rule, we accord deference to a fact finder’s determination of

binds this court nor limits our authority to take action. Id. Nevertheless, the Committee’s recommendation is advisory only and neither

denying admission to the applicant. Id. at 702-03. character and fitness should be resolved in favor of protecting the public by Application of T.J.S., 141 N.H. 697, 699 (1997). Any doubt concerning must prove good moral character and fitness by clear and convincing evidence. applicant. Application of Appell, 116 N.H. 400, 401 (1976). The applicant admission.” The burden of establishing fitness to practice law rests upon the Fitness of the Supreme Court of New Hampshire in advance of such length.” p. 3 when he showed her a knife with a blade between six and seven inches in book at the time and wanted to see what the store clerk’s reaction would be incident. At that time, the applicant told the interviewer that he “was writing a the two reasons.” At a previous interview, the applicant had also discussed the that it happened on April Fool’s Day. It was a bad joke. I’d say those would be alone would demonstrate no mens rea. But supplemental to that was the fact explained, “I was on SSI for six months directly following that incident, so that conduct conviction based on his “pretending to be a robber,” the applicant lacked mens rea for each of his nine convictions. With respect to the reckless When questioned about his criminal record, the applicant stated that he

run, it was a long time ago, and he doesn’t currently remember the details.” card debt. When questioned, “he indicated that the statute of limitations has Admission to the New Hampshire Bar, he reported $15,000 in delinquent credit any credit card debt.” Yet, on his July 2002 Petition and Questionnaire for have been extremely responsible and I have not, you know, even been late with report, if you look at the reports, all three of them, what you’ll find is that I the Committee, “[I]f we could, you know, skip that little superficial aspect of the admitted that he had handwritten “AAA perf. credit” on one of them and told The applicant brought copies of three credit reports to the hearing. He

obligations. income-contingent repayment plan, he was current on his student loan He also asserted to the Committee that, as a consequence of being on an

anything else at this point. wasn’t trained to do anything else. And I have no desire to do in order to pay that off. And I was trained to practice law[;] I interest on that $30,000 principal, realistically, I need a good job 3 something of that nature. But because there’s $120,000 worth of certainly could be paid off with a, you know, $10 an hour job or if I owed a measly $30,000, that’s an amount of money that

Committee that, employment in order to make payment on his loans, the applicant told the In response to the question of why he had not considered seeking other

almost twenty years ago. the applicant has not held gainful employment since his law school graduation Committee’s report, other than these positions and a job as a waiter in 1996, “I didn’t enjoy the service business. I felt it was beneath me.” According to the as a bartender. He quit the first bartending job, explaining to the Committee, but the motel had gone into foreclosure. In 2008, he briefly held two positions mother’s house. He had been working at her motel part-time in lieu of rent, license following his October 8, 2008 arrest for DWI Second Offense, a charge p. 4 superior court decision affirming the administrative suspension of his driver’s April 29, 2009. On May 5, 2009, the applicant filed a notice of appeal of a admission should not be denied. The applicant filed a responsive pleading on report, we ordered the applicant to show cause why his application for Following the issuance of the Committee’s February 17, 2009 negative

applicant] does not accept responsibility for any of his criminal acts.” applicant] puts forth for his conduct, it was clear to the Committee that [the Moreover, the Committee found that, “[r]egardless of which excuse [the years that would allow him to make payments on this loan obligation.” has made any type of sincere attempt to find employment during the last 20 problems, the Committee stated that it “does not believe that [the applicant] to responsibly deal with his own affairs.” With respect to his financial on other individuals or events for his conduct, are all indicative of his inability accept responsibility for his criminal conduct, and his practice of placing blame to responsibly deal with his personal financial obligations, his inability to In concluding its report, the Committee stated, “[The applicant]’s inability

his 2004 DWI conviction. The record does not reflect any statement by the defendant concerning

to see if she was being held there.

I lacked a mens rea because I was trying to see what was going on, taken, her money was taken, her purse, whatever, so in that sense,

being held in her house, locked up, her keys were being – had been sound fantastic, but she had told me the last time that she was

I didn’t have the mens rea because I believe that she – it may

her house.” However, he asserted, “I had tried to call her. I had tried to call a friend. I was within 1,000 feet of hearing, he admitted that he had violated the restraining order in several ways: the restraining order by sending her copies of motions. At the Committee had the complainant sign it. He was convicted of having violated the terms of However, the applicant admitted that he had written the motion to dismiss and

pleading 1; pleading 2 says that her father had forced her to lie. restraining order basically, because it’s not true, it says here in

It’s a motion to dismiss the complaint and the temporary [W]hat I have here is a motion that was filed by the complainant.

he produced a motion to dismiss the restraining order and stated: order, the applicant asserted that he had been “framed.” As evidence of this, When questioned about his six convictions for violating a restraining charges, the applicant explained that he had filed a lis p. 5 In response to the Committee’s request for more information on these

be that I lacked any mens rae [sic My defense, if I decided to have another fool for a lawyer, would

RSA 641:2 (2007). of RSA 638:2 (2007) and RSA 629:1 (2007), and false swearing, in violation of charged with attempted fraudulent handling of recordable writings, in violation wrote to the Committee informing it that, in December 2009, he had been to its consideration of his character and fitness. In response, the applicant hearing and asked that the applicant update the Committee on events relevant At the request of the applicant’s counsel, the Committee scheduled a . . . .

the applicant is notified of successfully passing the bar examination. admission must be administered to an applicant within two years from the time was ignorant, & I realize that ignorance of the law is no defense. 5 reminding him of Supreme Court Rule 42(8), which requires that the oath of document. I never obtained prior court approval. I am sorry. I On October 7, 2009, the Committee wrote to the applicant’s counsel N.H., an individual needs prior court approval, before filing such a prior to the filing. Had I done that, I would have discovered that in that I intended to sue the bank. aroused, & I had a fool for a lawyer. I did not research the law the deed, but rather, put potential Bona Fide Purchasers on notice full responsibility for my actions. To be candid, my passions were I am very sorry that I filed that document. It was a mistake. I take], that I was not trying to falsify

mother’s foreclosed house, in which he was living. He stated: Grafton County Registry of Deeds claiming a tenancy in common interest in his

matters were resolved. The Committee assented. further hearing on the applicant’s bar admission be deferred until the pending and “violation of a bail condition.” The applicant’s counsel requested that any the applicant had been charged with “driving after revocation or suspension” and, subsequently, to this court. Counsel also reported to the Committee that also appealed the administrative suspension of his license to the superior court appealed that charge and was awaiting a jury trial in superior court. He had been convicted of the DWI Second Offense charge in district court, had Counsel for the applicant informed the Committee that the applicant had

matter to the Committee for consideration of the new information. of which the Committee was previously unaware. We then remanded this p. 6 Fraud, Deceit or Misrepresentation, see admission under Supreme Court Rule 42B(VII): Acts Involving Dishonesty, February 17, 2009 report and identified three additional grounds for denying admission to the Bar of New Hampshire.” The report supplemented the that [the applicant] does not possess the necessary character and fitness for of April 20, 2010, concludes, “[T]he Committee remains even more persuaded recommendation that the applicant be denied admission to the bar. Its report

After the hearing, the Committee voted to confirm its earlier

you had already rejected me and you weren’t going to change your mind . . . .” intentionally,” and stated, “I just kind of assumed that it didn’t matter because report his recent criminal charges, the applicant claimed it “was not done With regard to his lack of candor towards the Committee in failing to

moral fitness requisite to serving in a fiduciary capacity.

have entered the program willingly. they are unable to demonstrate the type of good character and would have ordered more counseling.” However, he admitted that he would not those attorneys who are so morally or ethically challenged that argued that the report indicated that he is not an alcoholic, or the counselor report about his court-ordered seven-day alcohol treatment program. “He counseling sessions about his alcohol consumption. He also presented a cause the Committee to change its recommendation, the applicant pointed to As evidence of conduct following the 2009 negative report that might

public who might become clients of the practicing lawyer from

attorney-admission process is to protect those members of the A central purpose of requiring character review as part of the

42B(VII)(3); and Criminal Acts, see Sup. Ct. R. 42B(VII)(6). Misleading Statements or Omissions in the Application Process, see Sup. Ct. R. suspension of his driver’s license. Sup. Ct. R. 42B(VII)(2); False or indicated that if he did not prevail on his appeals, he faced at least a five-year the police and the results of the current charges reflect that irritation.” He also himself in these cases and “believe[d] that he irritated both the prosecutor and after suspension convictions, the applicant indicated that he had represented admission on March 11, 2010. When questioned about his DWI and driving The Committee reconvened the hearing on the applicant’s application for

for trial in early 2011. Fraud, Deceit, or Misrepresentation. We note that both charges are scheduled charges fall within the scope of Rule 42B(VII)(2), Acts Involving Dishonesty, sworn that he had no interest in real estate. The Committee found that these stemmed from a hearing in superior court in August 2009 during which he had As to the false swearing charge, the applicant explained that the charge handle his own affairs. See p. 7 We conclude that the record demonstrates the applicant’s inability to

involves being entrusted with the affairs of clients. The inability of an

dissatisfaction” with the required duties despite having outstanding debts). where applicant had demonstrated pattern of leaving jobs due to “personal Kline, 877 N.E.2d 654, 655 (Ohio 2007) (disapproving applicant’s admission payments), appeal dismissed, 925 N.E.2d 94 (N.Y. 2010); In re Application of inflexible in dealing with his lenders, and had never made any substantial delinquent student loans, disbursed over a twenty-year period, had been applicant’s petition for admission where the applicant had $430,000 in See or unable to stay current with debts is not in itself disqualifying.” Sup. Ct. R. In re Anonymous, 875 N.Y.S.2d 925 (Sup. Ct. 2009) (denying the pay one’s debts is not contingent upon finding the employment of one’s choice. The applicant’s outstanding debts are equally of concern. “Being in debt unmanageable proportions. The applicant fails to recognize that the duty to applicant’s neglect of his obligations that has allowed his debts to grow to to repay the original amount in less remunerative employment. It is the these loans is unavailing. As the applicant admitted, he would have been able employment as a lawyer will allow him to earn sufficient income to pay off responsible manner” is disingenuous at best. His argument that only efforts at repayment. His assertion that he has dealt with these debts “in a comprised of interest. There is no evidence that he has ever made significant 42B(11) comment. The applicant admits that 90% of his student loan debt is

to falsify the deed and therefore lacked the mens rea for the offense. same letter, attempted to excuse his conduct by saying that he was not trying take full responsibility for allegedly filing a fraudulent lis pendens, but in the proceedings by blaming everyone but herself”). For example, he claimed to fine, and “continued to debate the validity of her conviction during the board conviction is not an automatic bar to admission, see driving arrest during interview with bar association, failed to pay subsequent We first address the applicant’s criminal record. While a criminal 2008) (denying applicant’s admission where applicant had concealed drunk respect for the law.” In re Application of Wagner, 893 N.E.2d 499, 502 (Ohio accept the responsibilities placed upon [the applicant] and a lack of mature excuse them. “The totality of the evidence presented suggests a failure to claiming to take responsibility for his actions, he simultaneously tried to his conduct, especially as it relates to violating a restraining order.” While responsibility for any of his criminal acts,” nor “understand the criminality of that the Committee pointed out that the applicant “does not accept period of time, several of which occurred after his current application. We note N.H. at 699, the record here reflects numerous convictions over an extended

In re Roots, 762 A.2d 1161, 1167 (R.I. 2000). irrespective of any purported ultimate intent.” Application of Strzempek p. 8 obligations . . . impinges upon his character and fitness to practice law, your mind.” His “choice not to disclose in the face of [his] known matter because you had already rejected me and you weren’t going to change intentional, but later admitted that he “just kind of assumed that it didn’t minimize his own responsibility by saying that his omissions were not During the second hearing, once again, the applicant attempted to

treatment program voluntarily. In light of the applicant’s continuing pattern of alcohol treatment program. However, he admits he would not have entered the concerning his alcohol use, as well as his participation in a court-ordered

accomplishment.” During his second hearing, he cited counseling sessions years after graduating from law school, describing this as “an amazing his admission. He cited his ability to pass the bar examination nearly twenty fraudulent handling charges. was asked what positive characteristics he could point to that would support applicant informed it of his December 2009 false swearing and attempted criminal conduct. During his hearings before the Committee, the applicant February 2010, after the Committee rescheduled the second hearing, that the efforts to meet his financial responsibilities and to take responsibility for his after the Committee had scheduled his second hearing. Third, it was only in As noted above, the Committee found that the applicant was insincere in his suspension, and violation of a bail condition until more than a month later, determining whether an applicant has demonstrated sufficient rehabilitation. that charge. Second, the applicant did not report his arrests for driving after applicant’s 2008 DWI arrest, yet the applicant did not inform the Committee of Supreme Court Rule 42B(XIII) allows us to consider several factors in three times. At the time of his first hearing, the Committee was unaware of the The applicant failed to update his petition in a timely fashion, not once, but rely for assessment of good character.” Id. Finally, we address the applicant’s lack of candor with the Committee. the intent, as well as the purpose of the Character interview, upon which we jail only nine days before his interview). “His lack of candor clearly frustrated charges stemming from the same incident, despite having been released from to inform Committee of conviction for driving while intoxicated and several A.2d 988, 995 (Md. 2008) (denying application to the bar where applicant failed

not engender confidence in his ability to do either. inability to recognize the significance of his own financial responsibilities does properly managing client funds. N.H. R. Prof. Conduct 1.15. The applicant’s counsel clients on meeting their financial obligations and must be trusted with fitness to engage in the practice of law.”). An attorney may be called upon to grounds for finding that such an applicant does not possess the requisite applicant to handle his/her own affairs in a responsible manner may be p. 9 9

fitness to practice law. not satisfied his burden of proving, by clear and convincing evidence, his Based upon our review of the evidence, we hold that the applicant has

would conduct himself any differently. criminal behavior. We see no evidence that, as an attorney, the applicant failing to accept responsibility for the consequences of his poor judgment and an individual with a long history of evading his financial obligations, as well as DALIANIS, C.J., and DUGGAN and HICKS, JJ., concurred. mental and physical difficulties. However, taken as a whole, the record reflects We appreciate that the applicant, as his counsel recounts, has overcome.

must be resolved in favor of protecting the public and denying admission. Sup. Committee pointed out, any doubt about an applicant’s character and fitness basis, and undergo substance abuse treatment. However, as counsel for the that the applicant consult with a mentor, report to this court on a regular admitted on a probationary status. He proposed several conditions, including At oral argument, the applicant’s attorney proposed that the applicant be

public. Ct. R. 42B(V). We do not believe any conditions could adequately safeguard the

change of attitude. irresponsibility, we do not conclude that he has demonstrated a genuine