In re T.J.S.

692 A.2d 498, 141 N.H. 697, 1997 N.H. LEXIS 24
CourtSupreme Court of New Hampshire
DecidedApril 3, 1997
DocketNo. SMC-96-006
StatusPublished
Cited by4 cases

This text of 692 A.2d 498 (In re T.J.S.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re T.J.S., 692 A.2d 498, 141 N.H. 697, 1997 N.H. LEXIS 24 (N.H. 1997).

Opinion

Brock, C.J.

The applicant, T.J.S., seeks admission to the New Hampshire Bar. The committee on character and fitness (committee), by majority vote, concluded that the applicant had not satisfied his burden of proving sufficient character and fitness to practice law in this State. In response to the adverse recommendation, the applicant appeared before this court to show cause why his application for admission should not be denied. See Sup. Ct. R. 42(5)(k). Because it is “[t]he duty and power of the court to guard its portals against intrusion by men and women who are mentally and morally dishonest, unfit because of bad character, evidenced by their course of conduct, to participate in the [practice of] law,” In re Monaghan, 222 A.2d 665, 670 (Vt. 1966), we deny T.J.S.’s application.

In 1986, the applicant was convicted on six counts of felonious sexual assault of two of his female students while he was employed as a junior high and high school teacher. See RSA 632-A.-3 (1996). He served a total of approximately four years in the State Prison. While incarcerated, he participated in sex offender counseling and was by all reports a model prisoner. Since his release from prison, the applicant has married, graduated from law school, successfully completed the bar examination, and currently works for a law office in a nonlawyer capacity.

In response to a question on the bar application, the applicant disclosed his felony convictions. Subsequently, the committee undertook an extensive review of the applicant’s background and rehabilitative efforts. The committee’s investigation included sev[699]*699eral personal interviews with the applicant, review of his references and other background material, and evaluation of the opinions of several mental health practitioners. At the conclusion of a final hearing on March 8, 1996, the committee, by majority vote, recommended that the applicant’s petition be denied.

As a general rule, we accord deference to a fact finder’s determination of witness credibility and resolution of disputed questions of fact. See Budnitz’ Case, 139 N.H. 489, 491, 658 A.2d 1197, 1198 (1995). Nevertheless, the committee’s recommendation is advisory only and “neither binds this court nor limits its authority to take action.” In re Childress, 561 N.E.2d 614, 619 (Ill. 1990); see Sup. Ct. R. 42(5)(f).

To be admitted to practice law in this State, an applicant must possess “good moral character.” RSA 311:2 (1995). The burden of proving his or her “good moral character” lies with the applicant. Application of Appell, 116 N.H. 400, 401, 359 A.2d 634, 636 (1976); Sup. Ct. R. 42(5)(f). Although the applicant maintains that he may prove his fitness to practice law by a mere preponderance of the evidence, we hold that, as in a petition for reinstatement or readmission, see Prof. Conduct Comm. R. 2.13(b), the applicant must prove his “good moral character” by clear and convincing evidence. See In re Mustafa, 631 A.2d 45, 47 (D.C. 1993); In re Jaffee, 806 P.2d 685, 687 (Or. 1991); see also Application of Hughes, 594 A.2d 1098, 1101 (Me. 1991).

“Good moral character” refers to “those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’” Schware v. Board, of Bar Examiners, 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring). Among the essential aspects of good character are “respect for the rights of others and for the law, fairness, trustworthiness and reliability, and a professional commitment to the judicial process and the administration of justice.” In re Manville, 494 A.2d 1289, 1298 (D.C. 1985) (citations omitted).

A prior felony conviction is not, per se, a bar to admission. See generally Carr, Note, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 Geo. J. Legal Ethics 367 (1995). The nature of the wrong committed, however, is central to the determination of present character and fitness to practice law, see In re Childress, 561 N.E.2d at 620, and a prior conviction for certain serious crimes raises a presumption of unfitness, see In re Manville, 538 A.2d 1128, 1138 (D.C. 1988) (Terry, J., dissenting). Indeed, there are some [700]*700crimes which are so serious that it may be virtually impossible for the applicant to rebut this presumption. Cf. In the Matter of Dortch, 687 A.2d 245, 252 (Md. 1997) (Raker, J., concurring) (analyzing rehabilitation factor of American Bar Association test); see also Application of Matthews, 462 A.2d 165, 176 (N.J. 1983) (same).

A prior conviction for felonious sexual assault raises a presumption of unfitness. Cf. Otis’ Case, 135 N.H. 612, 618-19, 609 A.2d 1199, 1203-04 (1992) (attorney’s sexual assault of client warrants disbarment). The legislature has recognized that the commission of felonious sexual assault is sufficient basis to deprive a person of certain rights and privileges. By law, a person convicted of felonious sexual assault can never again be certified to teach in this State, see RSA 189:13-a, VI (Supp. 1996), obtain a liquor license, see RSA 178:25 (1994), or possess a firearm, see RSA 159:3, :3-a (1994). In addition, RSA 632-A:10,1 (1996) makes it a felony for such a person to engage in

employment or volunteer service involving the care, instruction or guidance of minor children, including, but not limited to, service as a teacher, a coach, or worker of any type in child athletics, a day care worker, a boy or girl scout master or leader or worker, a summer camp counselor or worker of any type, a guidance counselor, or a school administrator of any type.

Plainly stated, the applicant’s felony convictions for sexually assaulting his adolescent female students conclusively prove that at that time, the applicant was devoid of “good moral character.” See Matter of Prager, 661 N.E.2d 84, 89 (Mass. 1996). It is our task to determine whether he is sufficiently rehabilitated so as to remove the serious taint of his prior unfitness, Application of Matthews, 462 A.2d at 176, and displays a present “good moral character which emphasizes honesty, fairness, and respect for the rights of others and for the laws of this state and nation.” Petition of Wright, 690 P.2d 1134

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Gw
13 A.3d 194 (Supreme Court of New Hampshire, 2011)
Appeal of Oligny
8 A.3d 168 (Supreme Court of New Hampshire, 2010)
In re Bar Applicant ADM-2004-176
880 A.2d 439 (Supreme Court of New Hampshire, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
692 A.2d 498, 141 N.H. 697, 1997 N.H. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tjs-nh-1997.