In re Bar Application of Stevens
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Opinion
NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON NOVEMBER 3, 2022 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON NOVEMBER 3, 2022 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) In the Matter of the Bar Application of ) No. 201,997-8 ) ZACHARY LEROY STEVENS. ) En banc ) ) Filed: November 3, 2022 )
YU, J. — In 2018, this court held that “for purposes of bar admission, a
moral character inquiry is determined on an individualized basis,” and that “there
is no categorical exclusion of an applicant who has a criminal or substance abuse
history.” In re Bar Application of Simmons, 190 Wn.2d 374, 378, 414 P.3d 1111
(2018). A little over one year later, Zachary LeRoy Stevens sought admission to
the Washington State Bar Association (WSBA). 1 The WSBA Character and
Fitness Board (Board) recommended denying his application by a vote of six to
five. We reject the recommendation and grant Stevens’ application.
1 Stevens has partially waived his right to confidentiality in these proceedings. This opinion therefore contains personally identifying information and is not redacted. His application file otherwise remains sealed. See APR 24.1(g). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Stevens has been convicted of multiple serious crimes, he violated his
probation in 2013, he is subject to sex offender registration requirements, and he
was denied admission to the Arizona State Bar Association based on character and
fitness concerns. These facts are all relevant to our inquiry. However, like all of
us, Stevens is more than the sum of the worst moments of his life. In order to
provide the individualized inquiry that our precedent requires, we must consider
Stevens’ wrongful conduct in context.
Stevens’ most serious offenses occurred when he was a teenager. As an
adult, he has abstained from engaging in any unlawful conduct since 2013. In that
time, he has graduated from college and law school, he has been steadily
employed, and he has developed a supportive network of friends and family. It is
apparent from the record that Stevens has taken responsibility for his prior
misconduct and shows remorse. We therefore hold that despite his past
wrongdoing, Stevens has met his burden of showing that he is currently a person
“of good moral character” who “possesses the requisite fitness to practice law.”
APR 24.1(c). As a result, we grant his application for admission to the WSBA.
BACKGROUND
In bar admissions cases, we must consider the applicant’s background to
provide context for the events of their lives. See Simmons, 190 Wn.2d at 379.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Stevens’ case is no exception, and his upbringing provides information that is
crucial to assessing his culpability, remorse, and rehabilitation.
Stevens was born in Salt Lake City, Utah, and lived most of his life in the
Salt Lake City area. Verbatim Report of Remote Proceedings (VRP) at 155.
Around age 12, Stevens moved with his family to the suburban town of Alpine,
Utah, where he spent his adolescence. Stevens described the culture in Alpine as
“very much inundated in the Mormon faith,” and he had a great deal of difficulty
living within that majority culture. Id.
As a young child, Stevens was “very loud and disruptive” at school, and at
the age of six, he was diagnosed with attention deficit hyperactivity disorder
(ADHD). Id. at 157-58. The medications prescribed to treat his ADHD were not
successful, and Stevens had to switch medications frequently. Id.; see also id. at
71 (Stevens was considered to be “treatment resistant.”).
As he grew older, Stevens began to feel that he “didn’t quite fit into” the
local culture around him. Id. at 155. Within his community, “anything regarding
same-sex attraction” was “a transgression,” and individuals who did not conform
to community standards were “ostracized” and “bullied.” Id. at 163-64. Stevens
questioned whether he could conform to these community standards, causing him
to feel alienated and unable to confide in his parents out of fear that they would be
disappointed in him. Id. at 165.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Despite these feelings, Stevens found “a strong group of friends” in junior
high school and describes himself as “pretty happy” during that time of his life. Id.
at 158-59. This changed significantly as Stevens made the transition to high
school. The medication he had been taking to address his “underlying depression”
had “stopped working,” and his friends from junior high “all moved on and started
doing extracurricular activities.” Id. at 159. Stevens felt that he was “incapable of
integrating” into the high school environment and became “a very poor student.”
Id. at 160-61. By his junior year of high school, Stevens was using cannabis with
“one friend in particular” in an effort to self-medicate his depression. Id. at 161.
He dropped out of school that same year.
Stevens’ isolation grew after he completed high school through self-study.
Id. at 161-62. At that age, most of the boys in Stevens’ community were preparing
for religious missionary work. However, due to his alienation from the church,
Stevens did not prepare for a mission. His depression worsened, and he attempted
suicide. Id. at 170. Stevens also left his parents’ home and moved in with his “one
friend” from high school. Id. at 168; see also id. at 171.
Thus, before he had any criminal history, Stevens faced troubles in school so
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON NOVEMBER 3, 2022 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON NOVEMBER 3, 2022 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) In the Matter of the Bar Application of ) No. 201,997-8 ) ZACHARY LEROY STEVENS. ) En banc ) ) Filed: November 3, 2022 )
YU, J. — In 2018, this court held that “for purposes of bar admission, a
moral character inquiry is determined on an individualized basis,” and that “there
is no categorical exclusion of an applicant who has a criminal or substance abuse
history.” In re Bar Application of Simmons, 190 Wn.2d 374, 378, 414 P.3d 1111
(2018). A little over one year later, Zachary LeRoy Stevens sought admission to
the Washington State Bar Association (WSBA). 1 The WSBA Character and
Fitness Board (Board) recommended denying his application by a vote of six to
five. We reject the recommendation and grant Stevens’ application.
1 Stevens has partially waived his right to confidentiality in these proceedings. This opinion therefore contains personally identifying information and is not redacted. His application file otherwise remains sealed. See APR 24.1(g). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Stevens has been convicted of multiple serious crimes, he violated his
probation in 2013, he is subject to sex offender registration requirements, and he
was denied admission to the Arizona State Bar Association based on character and
fitness concerns. These facts are all relevant to our inquiry. However, like all of
us, Stevens is more than the sum of the worst moments of his life. In order to
provide the individualized inquiry that our precedent requires, we must consider
Stevens’ wrongful conduct in context.
Stevens’ most serious offenses occurred when he was a teenager. As an
adult, he has abstained from engaging in any unlawful conduct since 2013. In that
time, he has graduated from college and law school, he has been steadily
employed, and he has developed a supportive network of friends and family. It is
apparent from the record that Stevens has taken responsibility for his prior
misconduct and shows remorse. We therefore hold that despite his past
wrongdoing, Stevens has met his burden of showing that he is currently a person
“of good moral character” who “possesses the requisite fitness to practice law.”
APR 24.1(c). As a result, we grant his application for admission to the WSBA.
BACKGROUND
In bar admissions cases, we must consider the applicant’s background to
provide context for the events of their lives. See Simmons, 190 Wn.2d at 379.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Stevens’ case is no exception, and his upbringing provides information that is
crucial to assessing his culpability, remorse, and rehabilitation.
Stevens was born in Salt Lake City, Utah, and lived most of his life in the
Salt Lake City area. Verbatim Report of Remote Proceedings (VRP) at 155.
Around age 12, Stevens moved with his family to the suburban town of Alpine,
Utah, where he spent his adolescence. Stevens described the culture in Alpine as
“very much inundated in the Mormon faith,” and he had a great deal of difficulty
living within that majority culture. Id.
As a young child, Stevens was “very loud and disruptive” at school, and at
the age of six, he was diagnosed with attention deficit hyperactivity disorder
(ADHD). Id. at 157-58. The medications prescribed to treat his ADHD were not
successful, and Stevens had to switch medications frequently. Id.; see also id. at
71 (Stevens was considered to be “treatment resistant.”).
As he grew older, Stevens began to feel that he “didn’t quite fit into” the
local culture around him. Id. at 155. Within his community, “anything regarding
same-sex attraction” was “a transgression,” and individuals who did not conform
to community standards were “ostracized” and “bullied.” Id. at 163-64. Stevens
questioned whether he could conform to these community standards, causing him
to feel alienated and unable to confide in his parents out of fear that they would be
disappointed in him. Id. at 165.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Despite these feelings, Stevens found “a strong group of friends” in junior
high school and describes himself as “pretty happy” during that time of his life. Id.
at 158-59. This changed significantly as Stevens made the transition to high
school. The medication he had been taking to address his “underlying depression”
had “stopped working,” and his friends from junior high “all moved on and started
doing extracurricular activities.” Id. at 159. Stevens felt that he was “incapable of
integrating” into the high school environment and became “a very poor student.”
Id. at 160-61. By his junior year of high school, Stevens was using cannabis with
“one friend in particular” in an effort to self-medicate his depression. Id. at 161.
He dropped out of school that same year.
Stevens’ isolation grew after he completed high school through self-study.
Id. at 161-62. At that age, most of the boys in Stevens’ community were preparing
for religious missionary work. However, due to his alienation from the church,
Stevens did not prepare for a mission. His depression worsened, and he attempted
suicide. Id. at 170. Stevens also left his parents’ home and moved in with his “one
friend” from high school. Id. at 168; see also id. at 171.
Thus, before he had any criminal history, Stevens faced troubles in school so
severe that he dropped out; mental illness so serious that he attempted suicide; and
alienation from his church, community, and family based on questions about his
sexual orientation. As a result, Stevens’ “development at that time was not at the
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
level of where one might have expected for someone [at] the age of 19.” Id. at 76.
None of these facts excuse Stevens’ later criminal activity, but they provide
important context for the path he took.
In 2006, Stevens was still living with his friend, who sold drugs out of their
shared apartment. Id. at 173. When police executed a search warrant on the
apartment, Stevens’ friend “made it very, very clear from the beginning that the
drugs were all his, and he was the only one that was selling . . . drugs out of the
apartment,” but Stevens was also arrested for controlled substance violations. Id.
at 176. Following his arrest, Stevens severed communications with his only friend,
moved back into his parents’ home, and stopped trying to self-medicate his
depression with cannabis. Id. at 182-83. Stevens entered a plea in abeyance to the
controlled substance charges and, following a two-year period, received notice
from the Utah authorities that he had “successfully completed [his] abeyance
period.” Id. at 178. The charges were expunged. Nevertheless, at the age of 19,
Stevens was more isolated than he had ever been, as he had now “cut ties with
everyone.” Id. at 182.
As an incomplete and admittedly immature response to challenges he faced,
Stevens sought an escape by spending most of his time on his computer. Id. at
184. At first, Stevens played video games and established relationships with some
other players. He continued to communicate with them “outside of the game.” Id.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
These other players were also adolescent males, and they ultimately began
“webcamming” and “performing mutual masturbation for the camera for each
other.” Id. at 185. It is undisputed that Stevens never had physical sexual contact
with anyone he met or interacted with online. Id. at 189. However, Stevens found
greater connections online than he had been able to find in person, and he
expanded his online interactions.
In these interactions, Stevens “ma[d]e a conscious effort to appear younger,”
around “age 16,” and sought males aged “14-18.” Id. at 187-88; Mem. from
WSBA Regul. Servs. Couns. to Bd. (Aug. 13, 2020) (WSBA Memo), Attach. C at
178. This was dishonest and criminal. Yet it was also a desperate attempt to find
intimacy by an isolated, developmentally delayed teenager who needed, but had
never received, effective mental health care. In addition, it was a misguided
attempt at self-protection after Stevens encountered “older people soliciting him”
for sexual interactions far beyond Stevens’ developmental level. Wash. Sup. Ct.
oral argument, In re Bar Application of Stevens, No. 201,997-8 (Oct. 28, 2021), at
28 min., 28 sec., video recording by TVW, Washington State’s Public Affairs
Network, http://www.tvw.org; see also VRP at 187. The complexity of these
circumstances makes our task more challenging, but we cannot ignore it.
One of the individuals Stevens met online was an undercover detective
posing as a 14-year-old. The detective requested pornographic pictures of minors,
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
and Stevens sent them. A warrant to seize Stevens’ computer and webcam was
executed on July 20, 2006, but he was not charged until 2010. VRP at 192. Much
of the delay was attributable to the Utah authorities’ referral of the matter for
potential federal charges. The United States Attorney ultimately declined to file
charges because “even though the pictures were of children, she felt that they were
age appropriate due to the suspect[’]s age of only 19 at the time.” WSBA Memo,
Attach. C at 439.
During the roughly three-year period before Utah authorities filed charges
against Stevens, he made considerable strides in turning his life around, despite
continuing setbacks. He tried to reconnect with the church and attempted a
religious mission, as many of his peers had done immediately after high school.
VRP at 190. However, Stevens was “sent home” early because he “had not
disclosed to [his] Ecclesiastical leaders the experimentation that occurred” between
him and other males when he was younger. Id.
Following that experience, Stevens began seeing psychiatrist Richard Ferre
to address Stevens’ depression and “psychosexual development.” Id. at 72.
Stevens testified that his treatment with Dr. Ferre was the first time he felt listened
to and understood, and that Dr. Ferre was the first health care provider who
effectively addressed Stevens’ depression. Id. at 191. During this time period,
Stevens also enrolled in community college and later transferred to the University
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
of Utah, while working in restaurants to support himself. Dr. Ferre was aware of
Stevens’ criminal history, but he was not concerned by Stevens’ work and
educational activities in the community because “substantial gains [had] been
made in [Stevens’] ability to have insight into his behavior” and he was making
good progress. Id. at 74.
In March 2010, Stevens was charged with four counts of sexual exploitation
of a minor. Stevens ultimately pleaded guilty to reduced charges of voyeurism in
April 2012. The sentencing court found that Stevens had “completed [his]
psychosexual evaluation,’” ordered him to continue treatment and provide updates
to the court, and sentenced him to less than one year in jail and home detention,
plus three years of probation. Id. at 194-95.
The sentencing court stayed certain sex offender provisions that would
ordinarily apply, such that “[t]here are no legal restrictions” on where Stevens may
“live and work.” Id. at 284. Nevertheless, Stevens is required to register as a sex
offender. He will not be able to petition for relief from the registration requirement
until 2024. Id. at 211-12. On completion of Stevens’ 10-year registration period,
his felony voyeurism counts will be reduced to misdemeanors, in accordance with
his plea agreement. Id. at 212.
The final piece of Stevens’ criminal history occurred in 2013, while he was
in college and still on probation. Id. at 195. He chose to drive after drinking
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
alcohol, and he pleaded guilty to a misdemeanor charge of impaired driving.
WSBA Memo, Attach. A at 34. This conviction resulted in new probation
requirements that prohibited Stevens from drinking alcohol, but his probation was
not otherwise affected. VRP at 196. To the contrary, the Utah Department of
Probation recommended terminating his probation early based on the progress
Stevens had made. WSBA Memo, Attach. B at 39-41.
In the years since his impaired driving conviction, Stevens graduated from
the University of Utah and applied to law school. WSBA Memo at 2. During the
law school application process, Stevens appropriately disclosed his criminal
history, and he was accepted to the Arizona State University Sandra Day O’Connor
College of Law, starting in 2014. WSBA Memo, Attach. C at 818. Stevens
continued to comply with his sex offender registration requirements in Arizona.
He informed his classmates, his housemates, and his legal externship employers of
his criminal history. VRP at 41-42; WSBA Memo, Attach. C at 637-38. He
performed well in law school and graduated in 2018. VRP at 154.
As an adult, Stevens has gotten married, and he has developed a network of
supportive friends, family, and professional colleagues. Id. at 199-200, 288. After
graduation, Stevens continued his employment with a law firm that he had worked
for while he was in school. Id. at 138. His employer knows about his criminal
history, but she is not concerned about working with him, and she has consistently
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
informed her clients of Stevens’ sex offender status without incident. Id. at 135,
139. When asked about Stevens’ criminal history and his bar application, his
employer stated, “That 19-year-old should not be a lawyer. The . . . 33-year-old
that I work with I think is a different person than that 19-year-old was.” Id. at 148.
Stevens applied for admission to the State Bar of Arizona. His application
was referred to the Arizona Committee on Character and Fitness, which applied a
“presumption against admission” based on Stevens’ criminal history and denied his
application. WSBA Memo, Attach. B. at 50.
Stevens then applied for admission to the WSBA. His wife has family here,
and the couple had always planned to move to Washington sometime in the future.
VRP at 200-01. When Stevens was denied admission to the Arizona bar, the
couple accelerated their plans to relocate. Id. at 201. Stevens’ bar application was
referred to the Board, which recommended denying his application by a vote of six
to five. Findings of Fact, Conclusions of Law, Analysis, & Recommendation
(Board Majority) at 28. His application is now before us for final determination. 2
2 We accepted amici curiae briefs from the following individuals and organizations: Students from Seattle University School of Law; American Civil Liberties Union of Washington, Washington Defender Association, Disability Rights Washington, Washington Association of Criminal Defense Lawyers, National Employment Law Project, Institute for Justice, Brad A. Meryhew, and Columbia Legal Services; Northwest Justice Project, TeamChild, QLaw Foundation, QLaw Association, and Lincoln LGBTQ+ Rights Clinic; King County Department of Public Defense; and Public Defender Association, Civil Survival Project, Sarai Cook, Cleodis Floyd, Shon Hopwood, Christopher Poulos, Dieter Tejada, and the National Justice Impact Bar Association.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Without question, the record before us presents a challenging and complex
personal history. Therefore, in deciding whether to grant Stevens’ application to
the WSBA, we must consider not only his past wrongful behavior but the context
for his actions and the steps he has taken to improve himself and to hold himself
accountable.
ISSUE
Should this court grant Stevens’ application for admission to the WSBA?
ANALYSIS
In reviewing Stevens’ bar application, we must determine whether he has
met his “burden of proving by clear and convincing evidence that [he] is currently
of ‘good moral character’ as that term is defined by APR 20(c), and that [he] is
currently fit to practice law and meets all five essential eligibility requirements to
do so in accordance with APR 20(d)-(e).” Simmons, 190 Wn.2d at 384 (quoting
APR 24.1(c)). Our analysis “is guided by 14 different factors enumerated in APR
21(a) as well as aggravating and mitigating factors enumerated in APR 21(b).” Id.
at 385. “Our review of the Board’s recommendation is de novo.” Id. at 382.
A. Of the 14 factors listed in APR 21(a), only APR 21(a)(1), (9), (11), and (13) are implicated by Stevens’ bar application
The factors listed in APR 21(a) “shall be considered when determining an
applicant’s good moral character and fitness to practice law.” The Board majority
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
correctly determined that many factors (APR 21(a)(2), (4)-(8), and (12)) are not
implicated here. It is also undisputed that several APR 21(a) factors are implicated
here, including “unlawful conduct” based on Stevens’ criminal history, “violation
of a court order” based on Stevens’ 2013 impaired driving conviction while he was
on probation, and “denial of admission to the bar in this or another jurisdiction on
character and fitness grounds” based on Stevens’ denial in Arizona. APR 21(a)(1),
(9), (11). The remaining APR 21(a) factors are disputed. See APR 21(a)(3), (10),
(13), (14). Stevens also disputes the weight that should be given to the decision of
the Arizona State Bar Association denying his application.
We hold that Stevens’ bar denial in Arizona is relevant, but we give less
weight to this factor than we would give to a bar denial in a jurisdiction with
admissions standards more similar to our own or in a case where it appears that the
applicant is engaged in forum shopping. We also disagree with the Board’s
conclusions that APR 21(a)(3), (10), and (14) apply, and we hold that they do not.
However, we hold that APR 21(a)(13) does apply in this case, in addition to the
undisputed factors noted above.
1. We give less weight to Stevens’ bar denial in Arizona due to differences between our states’ bar admissions standards
In accordance with APR 21(a)(11), we must give appropriate weight to
Arizona’s denial of Stevens’ bar application. When another jurisdiction decides
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
against admitting a person to their bar association, we must thoughtfully consider
their decision, both out of respect for the judgment of other jurisdictions and to
prevent applicants from forum shopping for admission. It is undisputed that
Stevens was denied admission in Arizona. However, it is also undisputed that
Stevens is not forum shopping, given his family connections to our state.3 Thus,
the question is how much weight we should give to this factor.
Stevens argues that “little or no weight” should be given to Arizona’s denial
of his bar application because the two states have different admissions standards.
Reply Br. of Applicant Stevens at 12 (boldface and capitalization omitted).
However, Arizona’s decision fits squarely within the plain language of APR
21(a)(11), which provides that one of the factors that “shall be considered” is
“denial of admission to the bar in this or another jurisdiction on character and
fitness grounds.” We accordingly reject Stevens’ argument that it should be given
no weight. Contra dissent at 1-2 (asserting the majority gives “no weight” to this
factor). However, Arizona’s denial should be given less weight than a denial by a
jurisdiction with admissions standards more similar to our own.
3 The Board did not question Stevens’ truthfulness regarding his connections to Washington. See Board Majority at 17 (Stevens “is proud of his current marriage to his wife, Hanaye, and stated that he and his wife plan to move to Washington to raise a family.”). As a result, the dissent’s concerns about “the possibility that an applicant may forum shop after being denied admission in another state” are irrelevant to this case. Dissent at 11. In a case where forum shopping is a concern, it should certainly be considered as part of the “individualized” consideration given to every bar applicant. Simmons, 190 Wn.2d at 378.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Arizona applies a “presumption, rebuttable by clear and convincing evidence
presented at a proceeding, that an applicant who has been convicted of a
misdemeanor involving a serious crime or of any felony must be denied
admission.” ARIZ. R. SUP. CT. 36(b)(2)(A) (emphasis added). This presumption is
not the same as, or comparable to, the applicant’s burden of proof in Washington’s
admissions process.
Washington’s burden of proof applies equally to everyone, requiring that all
applicants “must establish by clear and convincing evidence that [they are] of good
moral character and possess[ ] the requisite fitness to practice law.” APR 24.1(c).
Our standards do not include any presumption of denial or “categorical exclusion”
against any applicant with a criminal record. Simmons, 190 Wn.2d at 378.
Although unlawful conduct is a factor to be considered in accordance with APR
21(a)(1), Washington bar applicants with a criminal history do not have to
overcome a higher burden than other applicants do.
By contrast, the Arizona presumption against admitting those convicted of a
serious misdemeanor or “any felony” explicitly adds an additional, substantive
burden. ARIZ. R. SUP. CT. 36(b)(2)(A). Where Arizona’s presumption against
admission applies, the applicant is not merely required to show by clear and
convincing evidence that they should be admitted based on a number of factors.
Instead, the applicant “must first establish rehabilitation from prior criminal
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
conduct, a requirement that adds to [their] burden of showing current good moral
character.” In re Hamm, 211 Ariz. 458, 463, 123 P.3d 652 (2005).
This added burden is a threshold matter in Arizona. Therefore, the applicant
“must initially demonstrate complete rehabilitation before [Arizona authorities]
consider other evidence of present good moral character.” In re King, 212 Ariz.
559, 563, 136 P.3d 878 (2006) (emphasis added). The Arizona Supreme Court
readily acknowledges that in cases “‘of extremely damning past misconduct, a
showing of rehabilitation may be virtually impossible to make.’” Hamm, 211 Ariz.
at 464 (quoting In re Matthews, 94 N.J. 59, 81-82, 462 A.2d 165 (1983)).
The additional burden found in Arizona law is, and should remain, entirely
absent from Washington law. Although Arizona’s presumption against admission
is not officially a per se disqualification, it may operate as such for those who
cannot be sure whether their criminal history will be considered “extremely
damning” and for those who do not know what they must do to demonstrate “full
and complete rehabilitation.” When such subjective standards are applied to such a
substantial burden, there is an unacceptable risk that the ultimate decision will be
unduly influenced by unlawful considerations.4 See Simmons, 190 Wn.2d at 398
4 We do not mean to suggest that “Washington’s individualized inquiry is any less subjective than the Arizona standard.” Contra dissent at 9. Instead, we distinguish between applying subjective standards in a state that does have a presumption against admission for applicants with criminal histories (like Arizona) and a state that does not (like Washington).
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
n.13 (citing Jon Bauer, The Character of the Questions and the Fitness of the
Process: Mental Health, Bar Admissions and the Americans with Disabilities Act,
49 U.C.L.A. L. REV. 93 (2001); Deborah L. Rhode, Moral Character as a
Professional Credential, 94 YALE L.J. 491 (1985)); see also APR 21(c)
(prohibiting discrimination in admissions decisions). We therefore continue to
“affirm the principles that for purposes of bar admission, a moral character inquiry
is determined on an individualized basis and that there is no categorical exclusion
of an applicant who has a criminal or substance abuse history.” Simmons, 190
Wn.2d at 378.
In addition, the APRs contain no presumption of reciprocity with other
jurisdictions when it comes to bar admissions. Like all court rules, the APRs
should be interpreted in accordance with the rules of statutory interpretation. See
LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48, 75, 331 P.3d 1147
(2014) (interpreting the Rules of Professional Conduct). This court has long held
that our “fundamental objective is to ascertain and carry out the [drafter]’s intent,
and if the [rule]’s meaning is plain on its face, then the court must give effect to
that plain meaning.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1,
9, 43 P.3d 4 (2002). The plain meaning “is discerned from all that the [drafter] has
said in the [rule] and related [rules] which disclose [the drafter’s] intent about the
provision in question.” Id. at 11.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
The Rules for Enforcement of Lawyer Conduct (ELCs) contain a
presumption of reciprocity, requiring licensed attorneys who are disciplined by
other jurisdictions to “show cause” why this court “should not impose the identical
discipline.” ELC 9.2(c). By contrast, the APRs merely provide that denial of
admission by another jurisdiction is one factor to be considered, alongside many
others. This shows that the rule drafters (that is, this court) knew how to enact a
presumption of reciprocity. The court chose to employ such a presumption in the
ELCs and chose not to do so in the APRs. Ordinary rules of statutory
interpretation hold that this indicates an intent to differentiate the admissions
process from the disciplinary process, and reasonably so. Although there are
certain parallels between discipline and admission cases, unlike attorneys facing
discipline, new applicants to the bar “do not have previous lawful experience as
independently practicing attorneys.” Simmons, 190 Wn.2d at 388.
Indeed, we have previously declined to import a “substantial evidence”
standard of review from the ELCs to the APRs precisely because that standard is
not reflected in the APRs. Id. at 382. There is no justification for importing a
presumption of reciprocal bar denial into the APRs from the ELCs, particularly
outside of the rule-making process, which “enables all interested and affected
parties to participate in creating the rule. Foisting the rule upon courts and parties
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
by judicial fiat could lead to unforeseen consequences.” In re Pers. Restraint of
Carlstad, 150 Wn.2d 583, 592 n.4, 80 P.3d 587 (2003).
Thus, we consider Stevens’ denial of admission to the Arizona State bar as a
relevant factor. However, we give it less weight than we would give to a denial by
a jurisdiction with laws more comparable to our own.
2. The Board majority incorrectly concluded that APR 21(a)(3), (10), and (14) are implicated here
We next consider Stevens’ challenge to the Board’s conclusions that APR
21(a)(3), (10), (13), and (14) are implicated in this case. We agree with the Board
that APR 21(a)(13) is implicated, but we agree with Stevens that APR 21(a)(3),
(10), and (14) do not apply.
a. APR 21(a)(13) is implicated by Stevens’ criminal history
APR 21(a)(13) requires us to consider “conduct that physically threatens or
harms another person.” In concluding that this factor applies, the Board majority
correctly pointed out that “[c]onduct involving child pornography and sexual
exploitation of a minor is harmful” and that “[c]hild pornography is not a
victimless crime and is extremely serious.” Board Majority at 21. However, that
is not the inquiry required by the plain language of the rule.
The seriousness of prior misconduct is not part of the analysis in
determining whether APR 21(a)(13) applies; instead, it is an aggravating factor to
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
be considered pursuant to APR 21(b)(4), discussed below. In addition, APR
21(a)(13) explicitly applies to conduct that physically threatens or harms others,
not all harmful conduct. Based on this language, Stevens contends that APR
21(a)(13) should not apply because it is undisputed that his crimes “did not involve
physical contact.” Reply Br. of Applicant Stevens at 19.
Stevens is correct that we must interpret APR 21(a)(13) in accordance with
its plain meaning to avoid rendering APR 21(a)(13)’s explicit reference to physical
harm “‘meaningless or superfluous.’” City of Seattle v. Long, 198 Wn.2d 136, 151,
493 P.3d 94 (2021) (internal quotation marks omitted) (quoting G-P Gypsum Corp.
v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010)). Nevertheless, we
reject Stevens’ contention on this point. He did not raise it until his reply brief,
and the exchange and viewing of sexually explicit depictions of minors is
sufficiently connected to physical threats and physical harm that APR 21(a)(13) is
implicated by such conduct.
b. APR 21(a)(3) does not apply in this case
Where applicable, APR 21(a)(3) provides that we must consider an
applicant’s “making of false statements or omitting material information in
connection with an application for limited admission to practice law, to take an
examination required for admission, or otherwise for licensure or admission to
practice law.” The Board majority concluded that this factor was implicated
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
because there is a discrepancy in the record regarding Stevens’ 2006 convictions
for controlled substance violations. We disagree.
As the Board majority correctly noted, Stevens “denies pleading to felony
charges,” but “[d]ocumentation shows that Stevens entered guilty pleas on all three
charges in that matter, including the two felony charges.” Board Majority at 20.
However, this discrepancy does not show that Stevens intentionally made a false
statement or omitted material information. Instead, as the Board dissent correctly
pointed out, “Stevens fully disclosed and cooperated in this current application.”
Board Dissent at 1. Moreover, his recollection of pleading to nonfelony charges
“is plausible and supported by Utah’s expungement statute in effect when the
convictions were expunged in 2008,” which did not permit expungement of felony
convictions. Id. at 2. Therefore, we agree with the Board dissent, and with bar
counsel’s assessment when referring Stevens to the Board, that APR 21(a)(3) is
“[n]ot applicable on [his] current application.” WSBA Memo at 10.
c. APR 21(a)(10) does not apply here
Next, Stevens disputes the applicability of APR 21(a)(10), which provides
that we must consider whether Stevens has engaged in “conduct demonstrating an
inability to meet one or more essential eligibility requirements for the practice of
law.” The Board majority concluded that this factor applies in accordance with its
analysis of Stevens’ inability to meet the essential eligibility requirements. Board
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Majority at 21. We agree with the Board to the extent that it recognized APR
21(a)(10) is somewhat duplicative of the analysis required to evaluate Stevens’
fitness to practice; both APR 21(a)(10) and the definition of “[f]itness to practice
law” explicitly incorporate “the essential eligibility requirements for the practice of
law.” APR 20(d). However, as discussed further below, we hold that Stevens does
meet the essential eligibility requirements, so APR 21(a)(10) is not implicated.
d. APR 21(a)(14) is a catchall category that does not apply here
The final APR 21(a) factor provides that we must consider “any other
conduct that reflects adversely on moral character or fitness of the applicant to
practice law.” APR 21(a)(14). The Board majority concluded that this factor is
implicated by Stevens’ impaired driving conviction while he was on probation.
However, that conviction is already subject to consideration as unlawful conduct
and violation of a court order pursuant to APR 21(a)(1) and (9). By requiring the
consideration of “other” conduct, APR 21(a)(14) clearly directs this court to
consider conduct that is not already implicated by the preceding APR 21(a) factors.
In concluding that APR 21(a)(14) is implicated by Stevens’ impaired driving
conviction, the Board majority improperly read the word “other” out of APR
21(a)(14), thereby permitting any misconduct by the applicant to be counted twice
(or more), for no clear reason. We decline to adopt this reasoning and hold that
APR 21(a)(14) does not apply.
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
To summarize, only APR 21(a)(1), (9), (11), and (13) are implicated by the
facts of this case. In addition, we hold that APR 21(a)(11) is entitled to limited
weight based on the different standards for admission in Washington and Arizona.
The weight given to APR 21(a)(1), (9), and (13) must be determined in light of the
aggravating and mitigating factors in APR 21(b).
B. Most of the applicable APR 21(b) factors are mitigating, and only one is aggravating
Having identified the APR 21(a) factors that apply in this case, we must
consider the factors listed in APR 21(b) “in mitigation or aggravation.” We hold
that only the “seriousness of the conduct” is an aggravating factor here. APR
21(b)(4). All of the other APR 21(b) factors are either mitigating, neutral, or not
applicable. Therefore, applying the APR 21(b) factors to the APR 21(a) factors
discussed above, we hold that Stevens’ prior misconduct, though extremely
serious, is sufficiently mitigated that it does not prevent his admission to the bar.
1. Five of the nine APR 21(b) factors are mitigating
Stevens’ age at the time of his prior actions, the time that has passed, the
circumstances underlying his conduct, Stevens’ candor in the admissions process,
and the evidence of his rehabilitation and recovery are all mitigating factors here.
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
a. Stevens’ age is a mitigating factor overall
APR 21(b)(1) requires us to consider the “applicant’s age at the time of the
conduct.” The Board majority appears to have concluded this factor is aggravating
because “Stevens was an adult when the unlawful conduct occurred and was
capable of understanding that his behavior was harmful and wrong.” Board
Majority at 22.
However, as Stevens correctly notes, the “hallmark features” of youth,
including “‘immaturity, impetuosity, and failure to appreciate risks and
consequences’” do not disappear on a person’s 18th birthday. Br. of Applicant
Stevens at 31-32 (quoting State v. Houston-Sconiers, 188 Wn.2d 1, 23, 391 P.3d
409 (2017)). To the contrary, this court’s precedent has repeatedly credited
“psychological and neurological studies showing that the ‘parts of the brain
involved in behavior control’ continue to develop well into a person’s 20s.” State
v. O’Dell, 183 Wn.2d 680, 691-92, 358 P.3d 359 (2015) (footnote and internal
quotation marks omitted) (quoting Miller v. Alabama, 567 U.S. 460, 472, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012)); see also In re Pers. Restraint of Monschke,
197 Wn.2d 305, 313, 321-23, 482 P.3d 276 (2021) (plurality opinion).5
5 O’Dell cites multiple studies reaching this conclusion, including Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAME L. REV. 89, 152 & n.252 (2009); MIT Young Adult Development Project: Brain Changes, MASS. INST. OF TECH., http://hrweb.mit.edu/worklife/youngadult/brain.html (last visited Aug. 4, 2015); and Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANN. N.Y. ACAD.
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
The dissent contends that this precedent should play no role in our
admissions decisions because “our review in this case is not to determine whether
Stevens received an appropriate sentencing in a criminal case.” Dissent at 12. The
dissent is correct that the law we apply in criminal sentencing cases does not apply
in the admissions context. However, we do not cite these cases for principles of
law. Instead, we cite them as sources of “current, credible social science.”
Simmons, 190 Wn.2d at 389. Such evidence must play a role in our admissions
decisions where relevant because “[w]e follow evidence-based practices” in
evaluating bar applicants. Id.; cf. APR 21(b)(9)(ix) (requiring consideration of
“expert opinion that the period of treatment, recovery, or remission is adequate” if
it has been “less than two years”). Therefore, although the law set forth in cases
like O’Dell and Monschke does not apply directly here, the social science
underlying those decisions cannot be ignored.
Stevens’ conviction for impaired driving while he was on probation occurred
when he was 26 years old. He was an adult, and research indicates that his brain
was likely “‘fully mature’” by that age. O’Dell, 183 Wn.2d at 692 n.5 (quoting
SCI. 77 (2004). 183 Wn.2d at 692 n.5. Monschke cites many others, including Kathryn Monahan et al., Juvenile Justice Policy and Practice: A Developmental Perspective, 44 CRIME & JUST. 577, 582 (2015); Alexandra O. Cohen et al., When Does a Juvenile Become an Adult? Implications for Law and Policy, 88 TEMPLE L. REV. 769 (2016); and Elizabeth S. Scott et al., Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 FORDHAM L. REV. 641 (2016). 197 Wn.2d at 322.
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
MIT Young Adult Development Project: Brain Changes, MASS. INST. OF TECH.,
http://hrweb.mit.edu/worklife/youngadult/brain.html (last visited Aug. 4, 2015)).
We therefore hold that Stevens’ age is neither a mitigating nor an aggravating
factor as to his impaired driving conviction.
However, Stevens’ most serious crimes occurred when he was 19 years old,
at an age when his brain was still in development. Moreover, Dr. Ferre testified
that even for a 19-year-old, Stevens “was functioning at an immature level” and his
development was delayed. VRP at 76. His voyeurism convictions and his
expunged controlled substances violations reflect, in part, his youthful
characteristics. As a result, we hold that Stevens’ age is a significant mitigating
factor with regard to these convictions.
b. The time that has passed is a mitigating factor in this case
APR 21(b)(2) directs us to consider whether the “recency of the conduct” is
aggravating or mitigating. As the Board majority correctly recognized, Stevens’
misconduct was not recent: “The last incident of the most serious unlawful conduct
occurred approximately 14 years ago” and his “probation violation occurred
approximately seven years ago.” Board Majority at 22. Nevertheless, the Board
appeared to conclude this factor is aggravating, based not on the recency of
Stevens’ conduct, but on his continuing obligation to register as a sex offender. Id.
The dissent appears to do the same, contending that “this ongoing legal obligation
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
[is] a factor weighing against Stevens’ admission,” despite its acknowledgement
that “Stevens’ conduct was not recent.” Dissent at 15 (emphasis added). We
disagree.
Nothing in the language of APR 21(b)(2) suggests that the dissent’s analysis
is appropriate. Stevens’ compliance with his legal obligations is relevant to APR
21(b)(9), as discussed further below. However, the existence of ongoing legal
obligations is not, in itself, a factor weighing against admission. If it were, our
precedent holding that “prior misconduct by a new applicant rarely provides
‘conclusive evidence’ that the applicant lacks good moral character” would be
inapplicable to any applicant with ongoing legal obligations. Simmons, 190 Wn.2d
at 388. We decline to limit our precedent in this way.
Indeed, the dissent cites no provision of the APRs and no applicable case
law to support its view that Stevens’ ongoing registration requirements are “a
strong aggravating factor.” Dissent at 17. Instead, the dissent cites a single case
concerning the ongoing legal obligations of a disbarred attorney seeking
reinstatement. Id. at 17 n.11 (citing In re Disciplinary Proceedings Against
Walgren, 104 Wn.2d 557, 571, 708 P.2d 380 (1985)). As we have already held, “a
new applicant with prior criminal or substance abuse issues is very different from a
reinstatement applicant who has previously been disbarred.” Simmons, 190 Wn.2d
at 387. Unlike previously disbarred attorneys, new applicants like Stevens “do not
26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
have previous lawful experience as independently practicing attorneys” and have
not “previously failed to fulfill their professional responsibilities so egregiously
that this court could not allow them to continue practicing law.” Id. at 388.
Thus, the dissent’s approach is not supported by the APRs or applicable
precedent, and we decline to adopt it. We therefore hold that the recency of
Stevens’ misconduct is a mitigating factor in this case.
c. The circumstances of Stevens’ conduct are largely mitigating
APR 21(b)(5) asks whether the “factors or circumstances underlying the
conduct” are mitigating or aggravating. The Board correctly recognized that
Stevens’ “relative youth and poor decision-making” and his difficulty finding
effective mental health treatment all provide mitigating context for his controlled
substances convictions. Board Majority at 22. We agree. We further hold that the
underlying facts and circumstances of Stevens’ voyeurism convictions are strongly
mitigating factors in this case. As discussed above, the conduct underlying these
charges took place when Stevens was extremely isolated, dealing with an untreated
mental illness, and developing at a delayed rate compared to his peers. None of
these circumstances excuse Stevens’ actions, but they provide context for
understanding what he did, why he did it, and why he will not engage in similar
conduct in the future. The circumstances underlying Stevens’ impaired driving
27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
conviction are not mitigating, but they are not aggravating either. Therefore, this
factor is overall mitigating.
d. Stevens’ candor is a mitigating factor
All bar applicants are expected “to cooperate in good faith” during the
admissions review process. APR 22.2(a). APR 21(b)(7) specifically directs us to
consider whether the applicant’s “candor in the admissions process and before the
Character and Fitness Board” is an aggravating or mitigating factor. As the Board
correctly and unanimously agreed, Stevens was candid throughout this process.
e. Stevens’ rehabilitation and recovery is strongly mitigating
APR 21(b)(9) requires us to evaluate “evidence of rehabilitation, recovery,
or remission” based on a nonexclusive list of 10 subfactors, “no single one of
which is determinative.” We must carefully consider each subfactor.
In accordance with APR 21(b)(9)(i) we must address the “absence of recent
misconduct.” As the Board correctly recognized, this subfactor weighs in favor of
mitigation because Stevens has not engaged in any misconduct since 2013, and his
most serious misconduct was years before that.
We must next address Stevens’ “compliance with any disciplinary, judicial,
or administrative order arising out of the misconduct.” APR 21(b)(9)(ii). Stevens’
only act of noncompliance was his impaired driving while on probation.
Otherwise, as the Board unanimously recognized, Stevens has fully “complied
28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
with court orders,” including his sex offender registration requirements. Board
Majority at 23; cf. Board Dissent at 3. This subfactor overall weighs in favor of
mitigation.
APR 21(b)(9)(iii) directs us to assess the “sufficiency of punishment”
Stevens received for his offenses. The Board majority appeared to view this as an
aggravating factor because Stevens received a “light sentence” for his voyeurism
convictions. Board Majority at 23. We disagree. As the Board dissent correctly
pointed out, neither the Board nor this court has any “basis in the record upon
which to second guess the decision made by a Utah judge who was much more
familiar with the underlying facts, criminal charges and applicable law than we
are.” Board Dissent at 3-4. We therefore hold that the adequacy of Stevens’
punishment weighs in favor of mitigation.
The Board correctly concluded that APR 21(b)(9)(iv), which asks about
“restitution of funds or property,” is not applicable in this case. See Board
Majority at 23.
APR 21(b)(9)(v) directs us to consider the “applicant’s attitude toward the
misconduct, including without limitation acceptance of responsibility and
remorse.” The Board majority appears to have treated this as an aggravating
factor, acknowledging that “Stevens appears to accept responsibility and express
some remorse for his unlawful conduct” but contradictorily asserting that “Stevens
29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
shows little insight into his behavior and accepts little responsibility.” Board
Majority at 23. We disagree. Stevens’ attitude toward his past misconduct is one
of genuine remorse and acceptance of responsibility.
As shown in the record, Stevens understands the impact that his choices had
on his victims. VRP at 262-63. Indeed, Dr. Ferre explicitly testified that Stevens
“was never avoidant of taking that responsibility” for his crimes, and we credit his
testimony. Id. at 77. By contrast, the statements the Board majority pointed to as
evidence of insufficient remorse are, in fact, evidence that Stevens is aware of the
circumstances that contributed to his past misconduct. It is wrong to equate this
awareness with a lack of remorse or a failure to accept responsibility.
Next, APR 21(b)(9)(vi) requires us to evaluate the applicant’s “personal
assurances, supported by corroborating evidence, of a desire and intent to engage
in exemplary conduct in the future.” Stevens has unequivocally given such
personal assurances, which are supported by evidence of his complete lack of
misconduct since 2013, his continuing engagement in mental health treatment, his
development of a supportive network of family and friends, and the unhesitating
support of his employers. APR 21(b)(9)(vii) similarly asks us to consider Stevens’
“constructive activities and accomplishments since the conduct in question.” Since
his most recent misconduct in 2013, Stevens has graduated from college and law
school while maintaining steady employment. He has taken control of his mental
30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
health issues, and he has learned to seek support when he needs it, rather than
isolating himself. This evidence weighs in favor of mitigation.
The Board majority reached the opposite conclusion. According to the
Board, because Stevens’ “offenses are private and serious,” it is not appropriate to
“rely solely upon character testimony, potentially ineffective treatment and self-
reporting.” Board Majority at 25. However, as the dissent correctly pointed out,
“[t]his standard would forever bar Stevens from being licensed as an attorney”
based solely on the nature of his convictions. Board Dissent at 5. The Board
majority’s approach is thus inconsistent with our precedent holding “that there is
no categorical exclusion of an applicant who has a criminal or substance abuse
history.” Simmons, 190 Wn.2d at 378. APR 21(b)(9)(vi) and (vii) weigh in favor
of mitigation.
Pursuant to APR 21(b)(9)(viii), we must consider “the applicant’s
understanding and acceptance of the factors leading to the misconduct and how
similar misconduct may be avoided in the future.” The Board majority, echoing its
analysis of APR 21(b)(9)(v) discussed above, concluded this was an aggravating
factor because Stevens did not present “a qualified, evidenced based assessment”
of his current mental health and he “demonstrates a lack of empathy for victims of
child pornography.” Board Majority at 25. We disagree.
31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
To the extent the Board majority relied on the same statements it cited in
connection with APR 21(b)(9)(v), we reject such reliance for the reasons stated
above. To the extent the Board majority relied on its view that “Dr. Ferre is not
qualified to identify or treat psycho-sexual issues,” we disagree. Id. at 26. As the
Board dissent correctly pointed out, the evidence in the record shows that “Dr.
Ferre is unquestionably qualified to identify and treat psychosexual issues in young
people and is also competent to render an expert opinion in this proceeding.”
Board Dissent at 13. In addition, “the Utah court noted that Stevens had completed
a psychosexual evaluation and was satisfied with the ongoing treatment and
quarterly reports of Dr. Ferre.” Id. at 12. Dr. Ferre is qualified, and we credit his
testimony.
Finally, to the extent that the Board majority’s assessment of APR
21(b)(9)(viii) relies on the fact that Stevens did not present a current mental health
evaluation, we strongly disapprove this reasoning. Although Stevens has a
criminal history relating to his mental health, that is not a sufficient basis to require
a current mental health evaluation before he may be admitted to the bar. Stevens
has successfully completed all court-ordered treatment. Moreover, Stevens
demonstrated an understanding of the factors leading to his misconduct in specific
relation to his mental health needs because he proactively sought treatment with
Dr. Ferre. He continues to manage his mental health with prescribed medication in
32 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
consultation with his doctor, and he has maintained contact with Dr. Ferre, who did
not express any concerns about Stevens being out in the community. VRP 90-91,
84-85.
We have no authority to require Stevens to undergo a mental health
evaluation, and it may, in fact, be unlawful for us to do so. Stevens is protected
from discrimination in the admissions process on the basis of “sensory, mental or
physical disability.” APR 21(c)(7). Requiring a person to undergo a health
evaluation solely because they have acknowledged their disability status appears
discriminatory. See 42 U.S.C. § 12112(d)(2)(A) (prohibiting medical examination
or inquiry of a job applicant as to whether they have a disability or “as to the nature
or severity of such disability”); RCW 49.60.180(4) (prohibiting “any inquiry in
connection with prospective employment, which expresses any limitation,
specification, or discrimination as to” disability status, “unless based upon a bona
fide occupational qualification”).
Moreover, by falsely equating Stevens’ mental health history with his
current moral character and fitness to practice law, the Board majority strongly
discourages current and future attorneys, and judges from disclosing and seeking
treatment for mental health issues, putting them at increased risk for harmful
behaviors that are known to plague the legal profession, ranging from alcohol and
drug abuse to suicide. See Hannah Furfaro, How Stigma Prevents People from
33 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Accessing Mental Health Care and What Can Be Done about It, SEATTLE TIMES
(Oct. 22, 2021), https://www.seattletimes.com/seattle-news/mental-health/how-
stigma-prevents-people-from-accessing-mental-health-care-and-what-can-be-done-
about-it/. Thus, the Board majority’s attempt to protect the profession would have
precisely the opposite result. We hold that APR 21(b)(9)(viii) weighs in favor of
mitigation in this case.
APR 21(b)(9)(ix) directs us to consider the “length of time in which the
applicant has been in recovery, or remission, where applicable.” The Board
majority appears to have treated this as an aggravating factor, noting that “Stevens’
depression is intractable” and asserting that “he was not treated for psycho-sexual
issues and has quit therapy.” Board Majority at 26. We reject this reasoning and
hold this factor is mitigating.
As discussed above, we disagree with the Board majority’s refusal to credit
Dr. Ferre’s testimony. In addition, just as it was inappropriate for the Board
majority to second-guess the sentencing decisions of the Utah court, it is entirely
inappropriate for the Board to second-guess Stevens’ treatment providers and
require him to engage in talk-based therapy. There is no indication that Stevens’
condition is not well managed by the prescribed medication he takes. The Board
majority’s attempt to impose a specific treatment regimen on him is unfounded and
discriminatory, as discussed above. As the Board dissent correctly pointed out,
34 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
“[g]iven the reliable, scientific evidence introduced at the hearing and the absence
of any conflicting testimony or documentation, any conclusion that Stevens is
likely to reoffend is based on nothing but unsupported conjecture.” Board Dissent
at 16.
The final subfactor in considering evidence of rehabilitation, recovery, and
remission is APR 21(b)(9)(x), which concerns Stevens’ “compliance with any
recommended or prescribed treatment plans.” It is undisputed that Stevens sought
mental health treatment before any court ordered him to do so, that he completed
all of his court-ordered mental health treatment, and that he continues to treat his
mental health diagnosis. This subfactor weighs in favor of mitigation. The Board
majority’s conclusion to the contrary is based on its refusal to credit Dr. Ferre’s
testimony, which we reject. As a result, the subfactors of APR 21(b)(9) all indicate
that the evidence of Stevens’ “rehabilitation, recovery, or remission” is a
mitigating factor.
Thus, five of the nine APR 21(b) factors are mitigating. See APR 21(b)(1),
(2), (5), (7), (9). None of these factors should be considered in aggravation.
2. One APR 21(b) consideration is an aggravating factor in this case
APR 21(b)(4) requires us to consider the “seriousness of the conduct.” It is
rightfully undisputed that the conduct underlying Stevens’ voyeurism convictions
is extremely serious. Stevens’ conduct of driving while he was impaired and on
35 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
probation is also serious. The seriousness of Stevens’ expunged controlled
substances conviction is less clear, but on the whole, this factor is aggravating.
3. The remaining APR 21(b) factors are neutral or not applicable
The remaining factors are APR 21(b)(3), (6), and (8). Each of these factors
is neutral or not applicable here.
APR 21(b)(3) requires us to contemplate the “reliability of the information
concerning the conduct.” There is no dispute that the information about Stevens’
prior misconduct is reliable, so this factor is not aggravating. However, it is also
not mitigating because the reliability of the information here is not within Stevens’
control. This factor is neutral.
APR 21(b)(6) provides that we must consider the “cumulative nature of the
conduct.” The Board majority concluded this is an aggravating factor because
“Stevens repeatedly violated the law or placed himself in situations in which the
law was violated.” Board Majority at 22. We disagree. To be “cumulative,” an
applicant’s acts of prior misconduct must be somehow similar or connected to each
other. Stevens’ convictions were not similar or connected. This is not mitigating,
but it is certainly not aggravating. Therefore, this factor is neutral.
Finally, APR 21(b)(8) directs us to consider the “materiality of any
omissions or misrepresentations” by the applicant. Because Stevens did not omit
or misrepresent information in his application, this factor is not applicable.
36 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
To summarize, we conclude that the relevant APR 21(a) factors are Stevens’
unlawful conduct, his violation of a court order, his denial of admission to the
Arizona bar, and his prior misconduct that physically threatened or harmed others.
APR 21(a)(1), (9), (11), (13). We hold that Stevens’ Arizona bar denial should be
given limited weight based on the differences between Washington and Arizona
bar admissions standards. We also hold that although the seriousness of Stevens’
misconduct is an aggravating factor, the other APR 21(b) factors are all either
mitigating or not applicable.
Therefore, we conclude that Stevens’ serious misconduct is sufficiently
mitigated that it should not prevent his admission to the bar. As a result, we hold
that Stevens has satisfied his burden to “establish by clear and convincing evidence
that he . . . is of good moral character” based on his “record of conduct manifesting
the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary
responsibilities, adherence to the law, and a respect for the rights of other persons
and the judicial process.” APR 24.1(c), 20(c).
C. Stevens has established his fitness to practice law because he meets all of the essential eligibility requirements
As noted above in our discussion of APR 21(a)(10), we hold that Stevens’
“record of conduct . . . establishes that [he] meets the essential eligibility
requirements for the practice of law” listed in APR 20(e). APR 20(d). His history
37 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
certainly raises questions as to whether he was able to meet some of the essential
eligibility requirements in the past. Nevertheless, our task is to evaluate whether
Stevens “is currently of good moral character and possesses the requisite fitness to
practice law.” Simmons, 190 Wn.2d at 381 (emphasis added). We hold that he has
demonstrated his current ability to meet the essential eligibility requirements, and
has therefore shown he “possesses the requisite fitness to practice law.” APR
24.1(c). The Board majority summarily concluded to the contrary based on the
same unfounded concerns and unlawful discrimination discussed above.
The Board majority acknowledged that Stevens has proved his “ability to
diligently, reliably, and timely perform legal tasks and fulfill professional
obligations to clients, lawyers, LLLTs, LPOs, courts, and others,” and his “ability
to communicate comprehensibly with clients, lawyers, LLLTs, LPOs, courts, and
others, with or without the use of aids or devices.” APR 20(e)(3), (5). However,
the Board majority incorrectly determined that Stevens does not meet the
remaining three essential eligibility requirements.
First, the Board majority concluded that “Stevens has demonstrated an
inability to conduct himself with a high degree of honesty and integrity by
behavior resulting in multiple criminal charges for which he received inadequate
punishment, evaluation and treatment.” Board Majority at 27; see APR 20(e)(1).
As discussed above, we have no basis on which to question the adequacy of
38 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
Stevens’ punishment. In addition, questioning the adequacy of Stevens’ treatment
with no supporting evidence will have a serious and lasting impact on the progress
we have made on the destigmatization and treatment of mental health issues, as
discussed above. Finally, contrary to our precedent, the Board majority’s minimal
analysis of this factor would prevent Stevens from ever gaining admission to the
WSBA because he cannot change his criminal history. We hold that the first
essential eligibility requirement is met.
Second, the Board majority held that Stevens lacks “[t]he ability to conduct
himself in a manner that engenders respect for the law and adheres to the
Washington Rules of Professional Conduct, because he engaged in conduct that
demonstrates disrespect for the law and resulted in multiple criminal charges.”
Board Majority at 27; see APR 20(e)(2). However, the Board majority fails to
acknowledge Stevens’ unblemished record of complying with his legal duties,
including his ongoing sex offender registration requirements, despite the
considerable burdens of doing so. There is no indication in the record that Stevens
currently conducts himself in a manner that does not respect the law, and the Board
majority’s conclusion to the contrary relies on facts from his past that cannot be
changed. Stevens meets the second essential eligibility requirement.
Third, the Board majority recognized that “Stevens is capable of performing
legal tasks and of identifying ethical dilemmas,” but nevertheless it concluded that
39 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
“without professional assessment of Stevens’ likelihood to reoffend, his ability to
identify ethical issues may not be sufficient to protect the public.” Board Majority
at 27. As discussed above, to the extent the Board majority relies on the fact that
Stevens did not present a current mental health evaluation, its reasoning is
inappropriate and potentially discriminatory. Moreover, Stevens has taken a
careful, nuanced approach to determining when he will notify prospective clients
of his sex offender status, despite having no legal obligation to do so,
demonstrating that he is already engaging in the kind of thoughtful self-reflection
that is necessary to resolve ethical dilemmas. He meets the fourth essential
eligibility requirement.
Therefore, we hold that Stevens meets all the essential eligibility
requirements, and he has “establish[ed] by clear and convincing evidence that
he . . . possesses the requisite fitness to practice law.” APR 24.1(c). He has met
his burden of proof, and his application should be granted.
CONCLUSION
Simmons “affirm[s] this court’s long history of recognizing that one’s past
does not dictate one’s future.” 190 Wn.2d at 387, 401. We do so again today. In
the years that Stevens has abstained from unlawful conduct, he has turned his life
around, and all the evidence in the record indicates he is unlikely to reoffend. We
grant his application for admission to the Washington State Bar Association.
40 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Bar Application of Zachary LeRoy Stevens, No. 201,997-8
WE CONCUR:
1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In re Matter of the Bar Application of Zachary Leroy Stevens
No. 201,997-8
MADSEN, J. (dissenting)—For bar admission, applicants bear the burden of
proving by clear and convincing evidence that they currently possess the good moral
character and fitness to practice law. Determining whether an applicant has met this
burden requires an individualized inquiry based on the applicant’s prior conduct. If an
applicant’s conduct raises red flags, the burden on the applicant to establish moral
character and fitness necessarily becomes more onerous.
Our role in bar admissions cases is to establish a baseline standard for attorneys
practicing in the State of Washington. This role is crucial to ensuring that people are able
to trust their lawyers and the legal profession as a whole. We do not presume fitness to
practice—a bar applicant must demonstrate this.
In my view, Zachary Stevens has not met his burden. First, Stevens was already
denied admittance to the Arizona bar. Although Washington standards are not identical
to those in Arizona, both states require the applicant to bear the burden of showing fitness
to practice. In Arizona, as in Washington, a felony conviction is evidence of a lack of
fitness that the applicant must overcome, particularly where the applicant is still under
constraints imposed by their conviction. In giving no weight to the Arizona Supreme For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
Court’s decision against admission, I believe the majority creates a substantially lower
standard compared to other states, which will encourage forum shopping by those with
serious criminal records. Second, in considering Stevens’ criminal history, the
Washington State Bar Association’s (WSBA) Character and Fitness Board (Board) took
into consideration Stevens’ age at the time of his convictions for voyeurism and driving
under the influence. The majority goes farther—it imports constitutional considerations
of youth for criminal sentencing purposes and then puzzlingly considers Stevens’ age to
be a mitigating factor, despite the fact that he was an adult at the time of conduct. This
holding confuses the purpose of admission criteria—to protect the public—and instead
draws on juvenile sentencing cases where the goal is to reintegrate offenders. It is also at
odds with the overall admissions scheme. The commission of a crime is a strike against
admission that must be overcome, not a mitigating factor. Third, Stevens still has an
ongoing legal obligation to register as a sex offender because of his past conduct. This
court has routinely required completion of legal obligations as evidence of fitness.
Finally, Stevens’ own therapist expressed some concern about his ability to handle stress.
Stevens has not presented any recent evidence showing his current mental fitness to
practice, despite the doctor’s concerns.
Alone, none of these factors is dispositive. Viewed in totality, however, these
factors demonstrate that Stevens failed to meet his burden to show by clear and
convincing evidence that he is currently of good moral character and fit to practice law.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
The majority says that it recognizes the serious nature of Stevens’ convictions but
contextualizes that behavior in a way that sanitizes and minimizes the ongoing
consequences of that behavior. Specifically, at the time of his most serious offenses he
was 19 years old and was involved in the sexual exploitation of children. Additionally,
he was required to register as a sex offender. The majority overlooks that Stevens’ most
serious violations occurred when he was an adult, at the ages of 19 and 26. Moreover,
the offenses involved victimized youth who were significantly younger than Stevens. I
disagree, and I would therefore deny Stevens’ application for admission at this time.
Stevens grew up in Alpine, Utah. After graduating high school, Stevens moved
out of his parents’ house to live with a friend. According to Stevens, he also began
drinking alcohol and smoking cannabis as a way to deal with his depression. In March
2006, Stevens was arrested and charged with possession of a controlled substance with
intent to distribute; purchase, transfer, possession, or use of a firearm by a restricted
person; and possession of drug paraphernalia in a drug free zone. Stevens was offered a
plea in abeyance 1 if he agreed to testify against his friend in the case.
Shortly thereafter, Stevens moved back to his parents’ house. He reports that he
stopped using cannabis and drinking alcohol, which made his depression worse. Stevens
1 “Plea in abeyance agreement” means an agreement entered into between the prosecuting attorney and the defendant setting forth the specific terms and conditions on which, following acceptance of the agreement by the court, a plea may be held in abeyance. UTAH CODE § 77-2a- 1(3).
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
began to spend most of his time playing computer games. He then began to message and
webcam with individuals he became close to while gaming. He performed mutual
masturbation on camera with these individuals and began to exchange photos, some of
which were pornographic in nature.
In July 2006, police executed a search warrant at Stevens’ house after he was
caught distributing pornographic images of underage children to an undercover detective
posing as a 14-year-old. Stevens was 19 at the time, but he posed as a 16-year-old to
communicate and share photos with underage individuals.
Stevens was charged with four counts of sexual exploitation of a minor. Stevens
later pleaded no contest to four amended counts of voyeurism, a second degree felony.
He was sentenced to not less than 1 year nor more than 15 years in prison, but the prison
term was suspended. He was sentenced to 210 days in jail, with 90 to be served in jail
and the remaining 120 days to be served through a GPS (global positioning system) or
work diversion program, and was required to pay $1,032 in fines. He was placed on
probation for 36 months. Stevens was also required to register as a group A sex offender,
but the court stayed the group A provisions when issuing Stevens’ sentence. 2 As part of
the plea agreement, the State agreed that upon the successful completion of probation and
a 10-year sex offender registration period, all four counts would be dropped down to
misdemeanors. Stevens may petition to have his sex offender registration obligations
terminated in May 2024. Stevens had his parole terminated early in May 2014.
2 Stevens is also classified as a level 2 sex offender in Arizona.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
In January 2013, Stevens was charged with driving under the influence, failure to
signal, and speeding. He pleaded guilty to the amended charge of impaired driving, and
the other two charges were dismissed with prejudice. He was sentenced to a term of 180
days in jail, with 178 days suspended, and offered the opportunity to complete 48 hours
of community service in lieu of jail time. This arrest was a violation of Stevens’ parole.
Stevens enrolled in law school at the Arizona State University Sandra Day
O’Connor College of Law in 2015. Stevens also worked at two law firms and externed at
the Maricopa County Office of the Public Defender. In October 2017, Stevens began
working for Margaret Vick, whose practice focuses on representing tribal governments.
Stevens continued to work for Ms. Vick after graduating from law school.
After graduation, Stevens took the Uniform Bar Exam (UBE) in Arizona,
receiving a score of 313. Stevens was then referred to a hearing before the Arizona bar’s
Committee on Character and Fitness of the Supreme Court of Arizona on April 12,
2019. 3 The Arizona committee concluded that Stevens failed to meet the burden of
proving by clear and convincing evidence his current good moral character based on “the
serious nature of Applicant’s criminal offenses, that he remains on sex offender status,
his lack of contrition and complete honesty, and the lack of evidence related to current
3 In Arizona, applicants are not required to complete a character and fitness application prior to being permitted to sit for the bar exam. This means an applicant may sit for the bar exam prior to finding out whether they have been deemed eligible for admission by the state’s character and fitness committee, as Stevens did here.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
good moral character.” Mem. from WSBA Regul. Servs. Couns. to Bd. (Aug. 13, 2020),
Attach. C at 412-13. Stevens did not appeal the decision.
In October 2019, following rejection by the Arizona bar, Stevens applied for
lawyer admission by UBE score transfer in Washington. After reviewing his application,
WSBA counsel determined there was a substantial question about whether Stevens
possesses the requisite moral character and fitness to practice law and referred his
application to the Board for a hearing. The Board identified two main issues for Stevens’
hearing: (1) his record of unlawful conduct disclosed in his application and (2) his May
2019 denial by the Arizona committee.
The Board held a hearing on August 21, 2020. A 6-5 majority of the Board
recommended this court deny Stevens’ application for admission. The majority board
members decided that “based on Stevens’ failure to produce competent professional
testimony that he is rehabilitated, upon Stevens’ minimization of his behavior, [and upon
his] failure to fully appreciate the effect his conduct has on victims and failure to take
responsibility for his crimes,” Stevens did not meet his burden to show that he has the
good moral character or fitness to practice law. Findings of Fact, Conclusions of Law,
Analysis & Recommendation at 26. In making this determination, the Board looked at
the factors laid out in APR 21(a) as well as the aggravating and mitigating factors set
forth in APR 21(b). The dissenting board members argued that the majority board
members misapplied various APR 21(a) and (b) factors to the facts of this case.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
Stevens appealed and asks this court to review and reject the Board’s
recommendation.
Those who apply for admission to the bar “must be of good moral character and
possess the requisite fitness to practice law.” APR 3(a). The APRs provide detailed
guidance to assess an applicant’s character and fitness. APR 21. Each application is
analyzed on “an individualized basis,” and there is “no categorical exclusion of an
applicant who has a criminal or substance abuse history.” In re Bar Application of
Simmons, 190 Wn.2d 374, 378, 414 P.3d 1111 (2018).
However, it is the applicant who bears the burden of establishing by clear and
convincing evidence that he or she is of good moral character and possesses the requisite
fitness to practice law. APR 24.1(c); Simmons, 190 Wn.2d at 384; In re Belsher, 102
Wn.2d 844, 850, 689 P.2d 1078 (1984); In re Wright, 102 Wn.2d 855, 868, 690 P.2d
1134 (1984). The majority analyzes the APR factors and concludes Stevens has met this
burden. I disagree for the following reasons.
1. Reciprocity
First, the majority argues that Stevens’ denial from the Arizona bar “should be
given less weight than a denial by a jurisdiction with admissions standards more similar
to our own.” Majority at 14. Under APR 21(a)(11), “denial of admission to the bar in
this or another jurisdiction on character and fitness grounds” is a factor we must consider
when determining an applicant’s good moral character and fitness to practice law.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
According to the majority, Arizona’s explicit presumption against applicants who
have been convicted of a felony provides a higher burden of proof for applicants than our
state’s requirements. Majority at 14. The majority reasons that Arizona’s standard is
substantially different than our own and thus should be given less weight than a denial by
a jurisdiction with laws more comparable to those in our state. But that is at odds with
the plain language of APR 21(a)(11), which states that a denial of admission in another
jurisdiction is a factor to consider when judging an applicant’s moral character and
fitness to practice. Trying to determine whether another jurisdiction’s standards are
comparable to our own is a largely subjective task, and it is unlikely that wording in
every state’s admission rules will be the same. What is the same, and the reason APR
21(a)(11) exists, is that admission rules in every state require the applicant to establish
character and fitness to practice law. Reciprocity exists in many aspects of admission to
practice and lawyer discipline. The majority’s “pick and choose” approach is
unwarranted and in tension with existing rules.
The majority justifies its ad hoc approach to APR 21(a)(11) by pointing to
language by the Arizona Supreme Court that in some cases a showing of rehabilitation
from a felony conviction may be virtually impossible. Majority at 15 (quoting In re
Hamm, 211 Ariz. 458, 464, 123 P.3d 652 (2005)). But in Hamm, the prospective bar
applicant shot two individuals at close range. The Arizona Supreme Court’s strong
language was in response to an applicant who was convicted of attempted murder.
Hamm, 211 Ariz. at 464. Nevertheless, the Arizona court has emphasized that even a
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
conviction for a serious crime does not constitute a per se disqualification and that each
case must be scrutinized on its own merits. In re King, 212 Ariz. 559, 563, 136 P.3d 878
(2006).
The majority also argues that Arizona’s standard creates a subjective standard that
will be “unduly influenced by unlawful considerations.” Majority at 15-16. But in the
next sentence, the majority affirms the principle that bar applicants should be judged on
an individualized basis. Id. at 16. It is unclear how Washington’s individualized inquiry
is any less subjective than the Arizona standard. A brief look at the Arizona committee’s
decision in this case affirms the similarities between Arizona’s standard and our own.
The Arizona committee denied Stevens’ application. Although the committee
applied the presumption against applicants who committed felony offenses, it also
considered other factors, including the serious nature of the offenses, the fact that Stevens
still remains on sex offender status, his lack of contrition, and lack of evidence related to
good moral character. Similar to our process, the Arizona committee considered the
serious nature of Stevens’ past conduct and concluded that he had not met his burden of
proving good moral character and rehabilitation. Rather than acting as an outright bar,
the felony conviction was a factor taken into consideration when determining whether the
applicant had met his burden. The majority reads too much into Arizona’s presumption
against felons. 4
4 As the two opinions in this case (majority and dissent) illustrate, we disagree about how to interpret and apply Arizona’s presumption. The majority gives no weight to the Arizona bar’s
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
In fact, this presumption is not dissimilar from our state’s standard. To be
admitted to the bar, an applicant bears the burden to show that he is of good moral
character and fitness. An individual who has a criminal conviction necessarily has a
higher burden to show his fitness than someone who does not. The majority correctly
points out that there is no categorical exclusion of an applicant who has a criminal
history. Majority at 14 (citing Simmons, 190 Wn.2d at 378). However, there is a middle
ground between categorically excluding an individual based on a criminal conviction and
not considering the conviction at all. Thus, like Arizona, our standard creates a
presumption against felons that is the applicant’s burden to overcome. 5
In addition, the majority attempts to create a distinction between the rules for bar
admission and the Rules for Enforcement of Lawyer Conduct (ELCs), arguing they are
not comparable because the APRs do not contain a presumption of reciprocity while the
ELCs do. Id. at 16-17. It argues that a plain reading of the rules requires us to conclude
that we cannot read reciprocity into the APRs. Id.
However, even if not explicit, APR 21(a)(11) strongly suggests the importance of
reciprocity. Moreover, the logic behind the ELCs and the APRs is similar. In the
decision not to admit Stevens in part based on his past criminal history. Instead, I would respect the Arizona decision as provided by APR 21(a)(11). 5 We apply a similar rule in the disciplinary context. A lawyer may be subject to discipline for committing an act of misconduct. ELC 13.1. It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. RPC 8.4(b). In both the attorney discipline and bar admissions contexts, our job is to determine whether a lawyer should be allowed to practice in our state. Thus, in both instances a felony conviction creates a presumption against the individual.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
disciplinary context, our rules require a lawyer who has been disciplined in another
jurisdiction to show why identical discipline should not be ordered in Washington. ELC
9.2(c). The lawyer to be disciplined bears the burden of showing cause for why identical
discipline should not be ordered. ELC 9.2(e). This rule is based on the American Bar
Association’s Model Rules for Lawyer Disciplinary Enforcement (2002) and has been
adopted by other states as well. See, e.g., ARIZ. R. SUP. CT. 57(b). As the comments to
the ABA Model Rules note, “[t]he spectacle of a lawyer disbarred in one jurisdiction yet
permitted to practice elsewhere exposes the profession to criticism and undermines public
confidence in the administration of justice.” MODEL RULES, supra, r. 22 cmt.
APR 21(a)(11) reflects a similar concern. Under this rule, an applicant who has
been denied admission in another jurisdiction on character and fitness grounds is not
automatically disqualified from admission in our state, but the prior denial is a factor that
we are required to consider. The majority argues that we have no presumption of
reciprocity and thus concludes that a denial in another state with a slightly different
standard should be given less weight. Majority at 17-18.
Taking this approach encourages the possibility that an applicant may forum shop
after being denied admission in another state. 6 In fact, under the majority’s logic,
individuals with past felony convictions should be encouraged to apply in our state
6 The majority criticizes our discussion about forum shopping. Majority at 13 & n.3. However, it is certainly our duty to consider the implications of our analyses and conclusions for future cases. Here, the majority’s decision will increase the occurrence of forum shopping—which should be of concern to this court.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
because of our lack of an explicit presumption against felons. As noted above, our role in
the bar admission process is to protect the integrity of the legal profession and to protect
the public’s trust in our profession. I am concerned that the majority’s weighing of this
factor disregards reciprocal decision-making with other states and encourages applicants
to apply for admission in Washington, hoping for a more lenient process than in other
states.
2. Applicant’s Age at the Time of Conduct
Next, the majority concludes that Stevens’ age at the time of conduct is a
mitigating factor because his brain was still developing when the conduct at issue
occurred. Majority at 23-25. The majority cites to our recent criminal juvenile
sentencing cases, where we relied on social science to conclude that age is a
consideration when imposing a sentence. Id. (quoting State v. O’Dell, 183 Wn.2d 680,
691-92, 358 P.3d 359 (2015), and citing In re Pers. Restraint of Monschke, 197 Wn.2d
305, 313, 321-23, 482 P.3d 276 (2021)).
In Monschke, a plurality of this court noted that “sentencing courts must have
discretion to take the mitigating qualities of youth . . . into account” and that “[w]e leave
it up to sentencing courts to determine which individual defendants merit leniency for
these characteristics.” 197 Wn.2d at 326. However, unlike in Monschke, our review in
this case is not to determine whether Stevens received an appropriate sentencing in a
criminal case. He has already been sentenced. Determining whether an applicant
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
possesses the moral character and fitness to practice law is not a decision about
appropriate punishment.
Further, the majority simply proceeds without pause or reflection, to apply this
court’s still-evolving juvenile sentencing cases to the bar admissions process. The
majority recognizes that such cases are not “directly” applicable yet relies on a passing
statement in Simmons that social science “must” play a role in our decisions. Majority at
24. This statement from Simmons concerned the science regarding the relationship
between sobriety and conduct and the likelihood of recidivism. 190 Wn.2d at 389.
Moreover, Simmons does not require reliance on social science, and I have found no other
decision in the bar admission context mandating it, let alone relying on distinguishable
cases like Monschke—a plurality decision limited to the offenses at issue (aggravated
murder requiring life without parole) for specific defendants (19- and 20-year-olds). We
must also acknowledge that studies on the brain maturation and behavior connection for
late-adolescence is imprecise.
More specifically, applying neurodevelopmental science in the criminal context,
as we did in Monschke, accomplishes our goal of providing individuals a chance to rejoin
society after they have demonstrated rehabilitation. Our role in the bar admissions
context is not analogous. That role requires us to ensure each lawyer admitted has the
good moral character and fitness to practice. We are not determining a prison sentence.
We are determining whether an applicant is currently fit to practice law. The role of a
lawyer in service to their client is venerable. Lawyers are often entrusted with the most
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
important aspects of our lives, and individuals often need a lawyer when they are at their
most vulnerable. Moreover, lawyers serve not only their clients but the public at large.
See In re Disciplinary Proceedings Against Huddleston, 137 Wn.2d 560, 573, 974 P.2d
325 (1999) (“[L]awyers owe an ethical duty [to their clients,] to the legal system, to the
legal profession, and to the general public.”). For these reasons, we must hold lawyers to
a higher standard.
Our role in this process is not to determine whether an individual should receive a
more lenient sentence because of their young age at the time they commit a crime.
Rather, our job is to protect the public interest and ensure each individual admitted to the
bar has the fitness to practice. In my view, therefore, reliance on juvenile criminal
sentencing is misplaced. Nevertheless, it would behoove the court to independently
discuss whether and how to use that case law before simply doing so.
In addition, Stevens still faces ongoing legal obligations as a result of his past
decisions. He was an adult at the time of his actions and should be held responsible for
those actions. For these reasons, I would hold that age is not a mitigating factor here.
3. Ongoing Sex Offender Status
Third, the majority largely ignores the fact that Stevens is still required to register
as a sex offender until at least 2024. 7 The majority notes he has complied with his
registration requirements but fails to consider this ongoing legal obligation as a factor
7 Utah sex offender laws allow individuals to petition the court to remove an offender from the registry if at least 10 years have passed from the day on which the offender was placed on probation. UTAH CODE ANN. § 77-41-112(1)(b)(ii).
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
weighing against Stevens’ admission. Majority at 26. Although Stevens’ conduct was
not recent, he has a continuing legal obligation that he has not fulfilled. 8
Even after satisfying this obligation, Stevens’ registration requirement will not
automatically be cleared from his record. Stevens will have to apply for expungement
when he becomes eligible to do so. UTAH CODE ANN. § 77-41-112.
If Stevens moves to Washington, he will have to register as a sex offender here as
well. See UTAH CODE ANN. § 77-41-105(2)(b) (“An offender required to register under
[sex offender laws] who is no longer under supervision by the department shall register in
person with the police department or sheriff’s office that has jurisdiction over the area
where the offender resides.”); RCW 9A.44.130(4)(a)(iv) (“Sex offenders . . . who move
to Washington state from another state or a foreign country must register within three
business days of establishing residence.”). 9 Stevens is currently registered as a sex
offender in Arizona, but he plans to move to Washington if admitted to the bar. Here, sex
offenders are placed into one of three classifications. End of Sentence Review
Committee, WASH. STATE DEP’T OF CORR.,
8 Stevens and amici argue that based on scientific evidence, people who commit sex offenses at a young age are extremely unlikely to reoffend. However, even if Stevens is highly unlikely to offend, the fact remains that Stevens is still required to register as a sex offender at this time. 9 The majority concludes that the mere existence of an ongoing legal obligation is not an aggravating factor weighing against admission. According to the majority, the “dissent’s approach is not supported by the APRs or applicable precedent.” Majority at 27. However, the majority ignores APR 21(b)(9)(ii), which states that evidence of rehabilitation, recovery, or remission including compliance with a disciplinary, judicial, or administrative order arising from misconduct may be a mitigating or aggravating factor. Stevens has yet to satisfy all of his legal obligations. Under APR 21(b)(9)(ii), this is an aggravating factor, which I would take into consideration.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
https://www.doc.wa.gov/corrections/justice/esrc.htm (last visited Oct. 27, 2022). Stevens
appears likely to be classified as a level 1 risk (“low risk of sexual re-offense within the
community at large”), 10 and thus will be required to report his offender status to local
law enforcement but will not be included on the sex offender search database website.
See, e.g., Sex Offender Registration Information, KING COUNTY,
https://kingcounty.gov/depts/sheriff/sex-offender-search.aspx (last visited Oct. 27, 2022).
Stevens has previously informed law school friends and his employer about his
offender status, but it appears he may have done this because of community notice
requirements. See, e.g., Verbatim Report of Proceedings at 198 (“They were going to
receive in their mailbox everything, and so I felt it would benefit . . . to hear it from me,
and I informed [my law school friends] I was on the sex offender registry.”), 210 (“I was
not involved in the decision making, but [my boss] did notify me she was going to inform
her clients before she did.”). When asked if he would disclose this information to future
clients, Stevens stated that it would be “dependent on the client.” Id. at 209. If Stevens is
admitted to the bar, there is no mechanism for ensuring that he will notify any of his
clients about his sex offender status.
10 “The vast majority of registered sex offenders are classified as Level 1 offenders.” Sex Offender Registration Information, KING COUNTY, https://kingcounty.gov/depts/sheriff/sex- offender-search.aspx (last visited Oct. 27, 2022).
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
We have similarly previously rejected applicants who were still on parole at the
time of their application. 11 In my view, we can maintain public trust and protect the
public interest by requiring individuals to fulfill their ongoing legal obligations before
being admitted to the bar. I would find the fact that Stevens is still required to register as
an offender to be a strong aggravating factor.
4. Lack of Recent Evaluation
Finally, the majority concludes that the Board improperly relied on the fact that
Stevens did not present a current mental health evaluation. Majority at 32. The majority
notes that it may be unlawfully discriminatory for us to require an updated health
evaluation prior to admitting Stevens to the bar. Id. at 33.
I do not agree that is the case when the applicant raises the issue of their mental
health. As noted, it is the applicant’s responsibility and burden to prove that they have
the mental fitness to practice law. In this case, Stevens’ former doctor Richard Ferre
testified that he had concerns about Stevens’ ability to manage life at this time. Given
Stevens’ past history, in addition to Dr. Ferre’s expressed concerns about Stevens’ ability
to handle stress, I find it concerning that there is no recent evaluation for our review.
With the record before us, it is difficult to determine whether Stevens has taken clear
ownership of his actions and where he stands in terms of his mental health.
11 Our court made a similar finding in the disciplinary context, holding an attorney who was disbarred could not be reinstated to the bar until he had finished serving his parole. In re Disciplinary Proceedings Against Walgren, 104 Wn.2d 557, 571, 708 P.2d 380 (1985).
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
To be admitted to the Washington bar, Stevens bears the burden of showing clear
and convincing evidence that he possesses the good moral character and fitness to
practice law. In making this determination, we are required to balance Stevens’ past
actions against those more recent acts and to consider evidence of rehabilitation. There is
no specific time period of rehabilitation, activity one must perform, or exact recovery
path one must follow. There is no bright-line rule when evaluating applicants. Simmons,
190 Wn.2d at 387. Rather, we must perform an individualized inquiry of the applicant’s
character and fitness. It unmistakably rests on the applicant to meet this burden and
demonstrate that they are of good moral character and possesses the requisite fitness to
practice.
Today, the majority balances the factors and concludes that Stevens should be
admitted to the bar. I cannot agree. The fact that Stevens must register as a sex offender
until he is eligible to petition for remission is particularly concerning, especially because
one of this court’s key responsibilities is to “guard the public and its confidence in the
judicial system.” Belsher, 102 Wn.2d at 850. Additionally, although Stevens has stated
that he continues to struggle with his mental health, he has not provided a current report
from a medical or mental health provider or any other evidence regarding his status.
Finally, I believe that lowering the weight given to the denial by the Arizona bar’s
Committee on Character and Fitness will create an unfortunate precedent that encourages
applicants with a history of felony charges to forum shop in our state.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 201,997-8 Madsen, J., dissenting
None of these concerns is by itself a categorical bar to admission. However, given
the totality of these factors, I would hold that Stevens has failed to show by clear and
convincing evidence that he has good moral character and possesses the moral fitness to
be admitted to the Washington bar at this time. That is not to say that Stevens is forever
precluded from applying to the Washington bar or that his past actions are an indelible
mark clouding his future. While we must judge an applicant based on their past, the past
does not control the future. Prior applicants have shown a path forward. E.g., Simmons,
190 Wn.2d at 386-99. Undoubtedly, other paths can be forged. It is my hope that if and
when Stevens addresses the concerns discussed above (satisfying his continuing legal
obligations among them), he would reapply for admission.
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Cite This Page — Counsel Stack
In re Bar Application of Stevens, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bar-application-of-stevens-wash-2022.