The Sad Saga of the Ex-Drug Dealing Law Student

David Powers, a certified public accountant working at PricewaterhouseCoopers, standing third in his class at St. John’s University School of Law, was preparing to graduate this spring. Seeking to move from accounting to law (and who wouldn’t?), Powers was completely candid to the New York Appellate Court’s Character and Fitness Committee, disclosing an expunged 1999 conviction for drug possession on his record and the circumstances surrounding it.  He wanted to know if the conviction would be a hurdle to his acceptance for admission to the New York Bar. But when he asked St. John’s to send the Bar a letter of support, it not only refused but rescinded his admission, reports the New York Post.

Now Powers is suing, since St. John’s taught him well.

The school maintains that Powers was not candid when he originally sought admission, revealing the conviction but leaving out the detail that his legal troubles began when he tried to sell LSD and Ecstasy to a New Jersey undercover cop. Powers spent a year in an in-patient rehab program and completed three years of probation in the drug possession case after a plea bargain that knocked the charges against him down from drug dealing. It appears that Powers did tell the whole truth to his accounting firm when applying for a job, and when he applied, successfully, to have his conviction expunged in 2005.  But St. John’s, which awarded Powers a $20,000 scholarship when it admitted him, argues that he willfully withheld information that might have interfered with his acceptance. After an exchange of correspondence, it kicked him out of school.

Fair?

This is a tough call. Powers had no choice but to reveal the whole sordid story to the Bar, because the application reads:

“Have you ever, either as an adult or a juvenile, been cited, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, except minor parking violations, or been the subject of any juvenile delinquency or youthful offender proceeding?

YES___ NO___.

If you answer yes, state the charge or charges, the disposition thereof and the underlying facts. Although a conviction may have been expunged from the records by an order of a court, it nevertheless should be disclosed in the answer to this question. Please note that you should have available and be prepared to submit or exhibit copies of police and court records regarding any matter you disclose in reply to this question.

The initial and understandable reaction is to be sympathetic to Powers, who has obviously turned his life around. He seems to be something of a star at PricewaterhouseCoopers. But the inconvenient truth is that the St. John’s application for admission to the law school is just as clear as the Bar’s application regarding arrests and convictions:

“Have you ever, either as an adult or a juvenille, been cited, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, except minor parking violations, or been the subject of any juvenile delinquency or youthful offender proceeding?

YES___ NO___

If yes, please explain in a supplementary statement the charge or charges and relevant facts, including the nature of the offense, the dates and courts involved, and the penalty imposed, if any. Please note: although a conviction may have been expunged or sealed by an order of the court, it nevertheless should be disclosed in answer to this question.”

Based on this (and I am assuming here that the current application is not materially different from the 2005 version Powers filled out), St. John’s is correct to argue that it was deceived. Perhaps, if Powers had disclosed what he was required to, another applicant who had managed to avoid criminal activities would have been accepted in his place. Perhaps Powers would not have received the scholarship.

I would hesitate to declare St. John’s unreasonably forgiving if it chose to excuse what Powers did, but I cannot condemn their strict actions against Powers as unfair. He withheld requested information that was relevant to the admission process. Trustworthiness and honesty are the core character requirements of the legal profession. I have criticized the profession for being too prone to excuse many attorneys’ deficits in these virtues too often in the past to find fault now with a law school that insists on holding its graduates to a higher standard.

Powers is paying a high price for a lack of candor, but it was his misrepresentation, and he is accountable. I wouldn’t bet on his lawsuit being successful. At least he still has a successful career in accounting, a profession that accepted him despite his past. What this says about the comparative ethical standards of the legal and accounting professions, I’ll consider another day.

7 thoughts on “The Sad Saga of the Ex-Drug Dealing Law Student

  1. Since IANAL, what does the law say about when disclosure of expunged or sealed records is required?

    Because my ethics alarms are ringing for a different reason: Is is legal, ethical, or even appropriate to REQUIRE someone to voluntarily disclose something that has been expunged or sealed? It sounds a lot to me like the right answer to such a question should be “The courts have determined through proper legal process that this is none of your damned business.”

    Ethically, this sounds to me like being asked for race / religious affiliation / marital status / sexual orientation / political affiliation / medical history / mother’s maiden name / whom you’ve voted for in the last 10 years / when, where, and to whom you lost your virginity–on a job or university application.
    Then if you refuse to answer, you don’t get the job or go to the school.

    There have to be limits on what sort of private information you can be required to disclose, and it seems that an expunged record easily falls on the private side. Otherwise, what’s the difference between an expunged record and one that hasn’t been?

    –Dwayne

    • There’s been a fascinating thread on this issue on a legal ethics listserv…the exact ethics and law are a little murky. 1) Many Bar associations are explicitly exempted by state law from not being able to ask for expunged information 2) Schools are not exempted, but….3) there is some question whether the “underlying facts’ can be asked for even if the conviction can not, and 4) in this case, the process of requesting expungement was going on AS the guy was seeking admission. So—let’s say it wasn’t expunged when he was asked on the application, was expunged by the time he raised the issue with the bar, but the school had to find out about the underlying facts he omitted in the course of his seeking their support for his character. He could have avoided telling the school NOW “honestly”, but not in 2005. You tell me: what’s fair here?

      • Okay, since the record had not yet been expunged at the time he applied to St. John’s, I agree he was ethically (and probably legally) bound to disclose it–that’s a key point that wasn’t clear to me in the article. Considering the large scholarship he was granted, a relatively harsh action by the school (more-or-less expelling him) was not out of line.

        And I guess he’s still in a position to apply to a different law school now and NOT disclose the conviction . . . except that, ironically, his lawsuit has made the whole affair a publicly-known thing . . . .

        –Dwayne

        • A point made in the on-line legal ethics discussion is that it is unfair to hold a typical college grad responsible for knowing exactly what he should divulge in such a complex situation, and I do agree with that. Many students apparently amend their application once they realize they didn’t disclose something they should have. I think, all in all, the law school was too harsh.

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