Sunday, January 6, 2013

F. Lee Bailey: Lack of Candor Costs him Maine Bar Admission

Disbarred in Florida in 2001 (and reciprocally in Massachusetts) the celebrity lawyer F. Lee Bailey passed the Maine bar examination in 2011.  A resident of Yarmouth, just outside Portland, he failed to satisfy the state's Board of Bar Examiners by a 5-4 vote.  The majority opinion notes that  "An applicant for reinstatement to the bar bears the burden to present “‘clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State.’”   Fatal to his application, the five examiners who denied him admission explained, was his lack of candor to the tribunal - the Board of Bar Examiners.

F. Lee Bailey and O.J. Simpson
"It is clear that Bailey does not recognize the wrongfulness of his past conduct. [A character witness Massachusetts Superior Court Associate] Justice [Kenneth] Fishman described Bailey’s past ethical lapses as an “aberration.”  It is certainly conceivable in other situations that misconduct could truly be aberrant behavior, particularly where the attorney understands and accepts the wrongfulness of his deeds, does not commit subsequent misconduct, and is forthright with this Board.  But Bailey’s creation of new explanations for his past wrongs and his lack of candor with this Board precludes the Board from reaching the conclusion that his conduct was an aberration."
Although not technically a violation of RPC 3.3 which proscribes false statements of fact and is addressed to  a lawyer's work as an advocate, the spirit of the rule is a deep cultural norm.  Bailey's excuse-making, and minimization of his past conduct offended the majority.  They found he had not met the heavy burden of a disbarred lawyer seeking to return to practice which specifies in Maine Bar Rule 7.3(j)(5) (C) that "The petitioner recognizes the wrongfulness and seriousness of the misconduct."

Other evasions weighed against Bailey - including omission regarding past administrative actions, and vague responses regarding residence which led the majority to suspect he had improperly evaded Maine resident taxes.

But the minority was convinced that Bailey had met his burden, declaring

 A blanket admission of guilt – which would in Bailey’s case be insincere – is not the touchstone for recognition of wrongdoing.  “[F]undamental justice demands that a person who believes he is innocent, though convicted, should not be required to confess his guilt of something he honestly believes he did not commit.”  In re Hiss, 368 Mass. 447 (1975) (Reversing the Board of Bar Overseers, the Massachusetts Supreme Judicial Court held that Alger Hiss’ insistence that he was innocent of perjury charges, even though he had been tried and convicted of that felony, did not justify denial of petition for admission and did not indicate lack of rehabilitation.)  
Bailey is entitled to his interpretation of events and his belief that certain of the adverse findings were wrong, so long as he accepts responsibility for his actions, appreciates the seriousness of his actions and the consequences, and has learned from his mistakes.
Citing his extensive public service since his disbarment and the support of numerous character witnesses, the four minority members (two of them non-lawyer professionals) recommended admission "without condition", though they note that Bailey (who proposed he be supervised by a local lawyer) was willing to accept conditions the court might impose.

Bailey will, I presume, petition the Supreme Judicial Court for review.

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