Robert Bowman Redux, Times Two, But Ohio’s Nicer Than New York

For several years I chronicled the frustrating travails of aspiring lawyer Robert Bowman. He was the New York law student repeatedly turned down for membership in the bar by  a panel of New York judges, who determined that he did not have the requisite good character to be admitted to the practice of law in New York because he owed nearly a half-million dollars in student loans. Not paying back financial commitments is one of the specific components of “moral turpitude,” which will block anyone from becoming a lawyer, though it will seldom get one kicked out of the profession after one becomes a lawyer. Go figure. The panel kept rejecting Bowman  because they felt his debt was per se proof of  irresponsible and negligent financial management, making him an unacceptable risk for any client.

A New York bar association subcommittee investigated, and  concluded that far from being of dubious character, Bowman was an individual of “exceptional character,” with unusual perseverance, humility and tenacity. It strongly recommended him for admission to the New York Bar, despite the outstanding debts. Ireaclize now that I never told Ethics Alarms readers “the rest of the story”: Bowman is a New York lawyer now. He finally won his appeal, though the news media, which chronicled his failures, decided that his ultimate success wasn’t newsworthy.

How do I know this? Bowman contacted me himself to tell me. He said he was grateful to all the people who had supported his quest, and was telling each of them, individually, in person.

Now comes the story, also with a possible happy ending, of another frustrated lawyer-to-be with similar issues, this time in Ohio, although I must say that her circumstances seem a bit more difficult to excuse. Cynthia Marie Rodgers (above) is a Capital University School of Law graduate whose Ohio character and fitness application was rejected because she has nearly twice as much school loan debt as Bowman, almost $900,000. Continue reading

Animal Treatment Ethics, Stowaway Raccoon Division: Should A Lawyer Face Professional Sanctions For This?

Controversial Cruelty to Animals Day at Ethics Alarms continues (I don’t plan these things) with this legal ethics story out of Florida. The video above is at the center of it.

Florida disciplinary authorities have opened an investigation into the professional fitness of a lawyer who forced a stowaway  racoon off of his boat a long way from shore,  and thought it was all amusing enough to post a video of the incident on Facebook. The bar’s assumption is that the animal drowned.  The lawyer is now subject to prosecution for a violation of Florida’s wildlife laws.

In Florida, as in every other U.S. jurisdiction, one of the kinds of unethical conduct that can result in bar discipline is committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,”  as stated by  Rule 8.4 (b) of the Florida Rules of Professional Conduct . Should the nautical lawyer’s conduct  qualify?

You may recall a far more egregious case of animal cruelty by a lawyer discussed here, where I questioned if a psychopath lawyer’s fatal attack on his girlfriend’s dog Snoopy really tells us anything about his trustworthiness as a lawyer. I wrote then,

Emotionally, I have no problem with seeing an animal abuser kicked out of my profession, but I don’t understand what values are being applied. Is it the commission of a crime? Most lawyer crimes don’t result in disbarment, if they don’t involve lying, cheating or stealing. …There is no basis on which to conclude that [Snoppy’s killer]  isn’t competent, zealous and trustworthy—just keep him away from pets.

Now, you may well ask, “Isn’t this at least “moral turpitude?” That’s the character flaw that will keep applicants for bar membership from getting a license due to character deficiency. There are two points related to that. First, moral turpitude might keep you out of the law at the outset, but it is not one of the official no-nos that will get you kicked out of it one you are a practicing lawyer.  The legal  definition of moral turpitude is an act or behavior that gravely violates the sentiment or accepted standard of the community. Brutalizing an animal would certainly qualify. The ABA, however, greatly narrowed the definition as it was applicable to legal discipline:

The 1983 Model Code (periodically amended by the ABA House of Delegates over the last 32 years) rejected the prohibition against “illegal conduct involving moral turpitude.” The ABA’s reason, which it included in a Comment to its Rule 8.4, was quite simple: “Moral turpitude,” the ABA advised, is a “concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” The American Law Institute’s Restatement of the Law Governing Lawyers § 5 (Third) (ALI 2000), agreed. It also concluded that “moral turpitude” is vague and may lead to discriminatory or otherwise inappropriate applications.”

This looks like an Ick Factor case to me. The abuse of poor Snoopy is so viscerally repulsive that the bar and the courts can’t keep their ethical priorities in order. It is also, as particularly ugly discipline cases often are, a matter of public relations and self-preservation for the legal profession. The bar association knows that not banning a lawyer like Pastor—one hopes there aren’t many–signals to the public that the bar welcomes brilliant advocates who may be monsters in their spare time. That is a dark and dangerous road the profession would rather avoid.

The lawyer in the Florida video also has some defenses the poodle-stomper did not.  Raccoons are wild animals, and cute as the are, they also bite. I wouldn’t want to be trapped on a boat in middle of the ocean with one, though I wouldn’t throw the critter overboard either, unless it was me or him. (My father had a home movie of me jumping out of a canoe and swimming to a lake’s shore when I saw a large spider in the vessel. Of course, I was only 15. All right, I was 26….) The raccoon may have also been a better swimmer than everyone assumes: unlike in the case of poor Snoopy, the lawyer wasn’t trying to kill the animal, just get it off the boat.

I do not, however, second the opinion of Law professor Dane Ciolino, writing on his Louisiana Legal Ethics blog, who says in discussing the case, “A Maryland lawyer was suspended for microwaving a cat. But a racoon? I think not.”

Wait—is the professor really saying that microwaving a live raccoon would not justify bar sanctions, but a cooking a cat does? That’s animal bigotry, but it is consistent with what I detected in the Snoopy case. If that lawyer had stomped to death a raccoon that wandered into the apartment, I doubt that he would have been disciplined.

Yet animal cruelty is animal cruelty. If gratuitously killing a dog or a cat shows that a lawyer is unfit to practice, so does unnecessarily killing a raccoon.


.

Morning Ethics Warm-Up, “Happy Birthday George Washington!” Edition

Good Morning!

1 The Indispensable Man...This is George Washington’s birthday, and every American alive and dead owes him an unmatched debt of gratitude. A useful assessment of why this is true can be found here.

Not only was Washington indispensable as the military leader who won the Revolution, he was also, it seems likely, the only human being who could have navigated the impossibly difficult job of being the first President of a new nation attempting an unprecedented experiment in democracy. The precedents he set by his remarkable judgment, presence, wisdom, character and restraint continue to be a force today. Washington was also perhaps the most ethical man who has ever been President. The principles that guided him from his youth and that resulted in his being the only man trusted by the brilliant but often ruthless Founders who chose him to lead their new country can be reviewed here, but two of them tell us what we need to know about Washington’s ideals…the first,

Every action done in company ought to be with some sign of respect to those that are present.

…and the last,

 Labor to keep alive in your breast that little spark of celestial fire called conscience.

Revoltingly, the average American is largely ignorant regarding the great man whose face adorns the one dollar bill. For example,  a recent YouGov survey asked respondents who was the best President in U.S. history. 16% of Americans selected Ronald Reagan, and 16% selected Barack Obama. Abraham Lincoln took third place with 15%. Washington finished fourth,but only 10% of those surveyed named him as the best President,  14 percent of Republicans, and only six percent of Democrats. I assume that Reagan, and I hope even Obama, would find these results ridiculous. They tell us that citizens can not distinguish politics from virtue. They tell us that the schools teach neither history nor critical thought effectively. They tell us that Democrats regard the fact that Washington was a slaveholder more notable than the fact that he made the United States possible. They tell us that the nation is losing a connection to its origins, heroes and values. It tells us that most of the public is ignorant of things that competent citizens must know.

It tells me that when an advocate cites a poll that says, “Americans want this,” the proper response is “Why should anyone trust their judgment? They think Regan and Obama were better Presidents than George Washington.”

2. Children’s Crusade update: Both CNN and HLN are flogging the high school student protests virtually to the exclusion of any thing else. The total commitment to aggressive and emotional advocacy on the part of the mainstream news media was disgraceful after the Sandy Hook school shooting, but this is worse; just when I think our journalism has hit the bottom, it finds a way to go lower.

This morning on HLN, I was greeted by an extremely articulate Marjory Stoneman Douglas High School survivor who said,  confidently and radiating certitude, “These episodes are completely preventable.” Putting such nonsense on the air, even when spoken by an attractive, sympathetic, youthful idealist who perhaps cannot be blamed for not knowing what the hell she’s talking about,is irresponsible and incompetent. It is no different from saying “The Holocaust never happened,” Barack Obama was born in Kenya” or “The world is ruled by the Illuminati.” “These episodes are completely preventable” is, from the mouth of anyone qualified to be on television talking about gun policy, a lie, and from someone like this young woman, as naive as professing a belief in Santa Claus. Such statements should not be presented in a news forum as a substantive or serious position. A news organization has an ethical obligation either to correct the misinformation, or not to broadcast it without context, like “Here is the kind of arguments these child activists are making, making serious and coherent debate impossible.”

When the crawl across the bottom of my screen added another argument from one of the activist students—has there ever been a time when the policy analysis of people lacking high school diplomas has ever been given so much media attention and credibility?—that read, “Student protester: “People are buying guns who don’t need them,” I switched to the Cartoon Network

Right, kid, let’s pass laws that prohibit citizens from buying what the government decides they don’t need.

Continue reading

But…But… It Doesn’t Mean He’s Not A Good Lawyer!

RIP, Snoopy.

This is a fascinating example of the legal community’s incomprehensible standards regarding who is and who isn’t fit to practice law.

In New York,  the bar took away lawyer Anthony A. Pastor’s license after he violently killed his girlfriend’s poodle “Snoopy.” See Matter of Pastor, 2017 NY Slip Op 06729, (App. Div. 1st Dept. Sep. 28, 2017).

An autopsy revealed that Snoopy  had nine broken ribs, a crushed kidney and massive internal bleeding, all at the hands of Pastor.

In disbarring Pastor, [ Matter of Pastor, 2017 NY Slip Op 06729, (App. Div. 1st Dept. Sep. 28, 2017)], the court noted that the sentencing judge’s comments that the respondent’s conduct “‘showed almost incomprehensible violence, and malice,’ that the dog was in ‘excruciating pain’ up until she lost consciousness while respondent ‘sat down at his computer in the most cold-blooded manner, and went to work, knowing that the dog lay dying, . . . on the floor behind him.’”

Nice.

But what does it have to do with whether the creep is a competent, honest, trustworthy lawyer?

Again I note that John Edwards never faced discipline for his massive deceptions and machinations, while his wife was dying of cancer, and while he was running for President. This conduct directly implicated trust and character, yet the refrain of Edwards’ colleagues was that his deceptions and cruelty, while clearly unconscionable, did not involve the practice of law, and thus did not preclude Edwards continuing to be regarded as a trustworthy lawyer. Are they kidding? I wouldn’t trust John Edwards to mail my water bill. Still, I hear this argument all the time in my legal ethics classes. One hypothetical is about a law partner who is caught cheating at poker in a regular game among fellow attorneys. Does that conduct mandate reporting him to the bar for discipline? Most lawyers say no.

They are wrong. Continue reading

The Legal Profession’s Muddled Standard For “Fitness To Practice”

OK, he has a temper, but hire him as your lawyer, and you can trust him with your life!

I confess: my profession’s standard for discipline bewilders me, and leads me to believe that nobody really knows what kind of conduct by a lawyer should dictate that he or she should be kicked out of the profession. I was reminded of this when I read a report about a former associate at a large New York law firm whose license was suspended for three years because he physically abused his girlfriend. A hearing panel had recommended a 60 day suspension, but the Appeals Court decided on three years.

Here is the basic rule regarding misconduct by lawyers, from the ABA’s Model Rules:

Maintaining The Integrity Of The Profession

Rule 8.4  Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Tell me: which provision did the brutal lawyer violate? Continue reading

Robert Bowman: Aspiring Lawyer, Ethics Martyr

Robert Bowman, according to a panel of New York judges, does not have the requisite good character to be admitted to the practice of law in New York. The reason for the panel’s finding is superficially logical: he owes nearly a half-million dollars in student loans. This is, says the panel, per se proof of irresponsible and negligent financial management, making him an unacceptable risk for any client.  The panel is almost certainly wrong. Continue reading