(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 28, 1995 -- Decided May 20, 1996
HANDLER, J., writing for a unanimous Court.
This case involves issues of character and fitness for admission to the bar. All applicants for admission
to the bar must submit a detailed sworn Statement to the Supreme Court's Committee on Character and must
undergo additional reviews, including a criminal records fingerprint check. The Statement and supporting
materials are processed by the Committee's staff and are reviewed by the volunteer attorneys who serve on the
Committee.
Frank B. McLaughlin of Brooklyn, New York, sat for and passed the July 1994 bar examination. He
was a graduate of Rutgers Law School_Newark where he was the Book Review Editor of the Law Review.
Before attending law school, McLaughlin was a claims analyst for American Reinsurance in Princeton, New
Jersey.
A hearing was scheduled before a panel of the Committee to address three aspects of McLaughlin's
application. The first involved a Massachusetts arrest in 1985. McLaughlin took the position that he had
disclosed the arrest and its circumstances in an attachment to his original Statement; the Committee concluded
that the disclosure was not appended to the Statement.
The second item was McLaughlin's disclosure of a 1994 arrest in Hoboken, New Jersey. McLaughlin
described his involvement in a "peaceful political protest." The Committee concluded that his description of the
incident was incomplete and misleading.
The third item arose out of McLaughlin's dealings with his automobile insurance company and his failure
to make complete disclosure regarding suspensions of his driver's license.
In addition to the disclosure and candor problems presented by McLaughlin's application and testimony,
his conduct before the Committee's hearing panel and his treatment of court personnel during the proceedings
raised other concerns about his character and fitness. The record reflected incidents of impatient and snide
comments to the panel members of the Committee and the use of extreme examples of sarcasm, flippancy, and
other inappropriate responses.
The Committee on Character concluded that McLaughlin did not possess the requisite character for
admission to the bar. It recommended to the Court that it withhold certification of McLaughlin's character. The
Court issued an Order to Show Cause why certification should not be withheld.
HELD: Candidates for admission to the bar must possess the traits of honesty and truthfulness, trustworthiness
and reliability, and a professional commitment to, and respect for, the judicial process and the
administration of justice. Based on its independent review of the record in this matter, the Court
withholds certification of the applicant's character.
1. The character traits required of applicants for admission to the bar should be formulated in terms of the
qualities of character that attorneys must possess to fulfill their obligations to clients and the judicial system.
In assessing the record in this matter, the Court accepts the conclusions of the Committee on Character,
particularly in respect of credibility. (pp. 17-20)
2. Although McLaughlin's arrests involved relatively minor matters, his treatment of those arrests before the
Committee demonstrated a significant lack of candor. Furthermore, his handling of his automobile insurance
also indicated a lack of honesty, particularly when it is noted that McLaughlin worked in the insurance industry.
McLaughlin's actions constitute a pattern of behavior that demonstrates a clear and convincing lack of the
required reverence for the truth. (pp. 20-23)
3. Prior decisions of the Court have made it clear that an applicant's attitude will be a factor in determining
present fitness. McLaughlin's demeanor and expressions in correspondence give ample cause to conclude that
he has an insufficient appreciation for the proper administration of justice. His conduct bordered on contempt.
The judiciary seeks to suppress incivility, which, if tolerated and unchecked, can render the transaction of judicial
business impossible. McLaughlin's conduct was marked with impudence and insolence and belied a fidelity to
the administration of justice that must be possessed by members of the legal profession. (pp. 23-28)
4. McLaughlin's lack of insight into his shortcomings leads the Court to conclude that he is not currently a
worthy candidate for admission to the bar. The Court, however, also concludes that McLaughlin should be given
the opportunity to rehabilitate himself. He may, no earlier than six months from the filing of the Court's
opinion, submit rehabilitation evidence to the Committee in accordance with the requirements of Application
of Matthews,
94 N.J. 59 (1983).
The recommendation of the Committee on Character is adopted and certification of the applicant's
character is WITHHELD.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
E-
22 September Term 1995
IN THE MATTER OF
THE APPLICATION OF
FRANK B. MCLAUGHLIN,
FOR ADMISSION TO THE
BAR OF NEW JERSEY.
Argued November 28, 1995 -- Decided May 20, 1996
On an Order to show cause why respondent
should not be certified for admission to the
bar.
Thomas J. McCormick, Assistant Ethics
Counsel, argued the cause on behalf of the
Committee on Character.
Philip A. Nemecek, a member of the New York
bar, argued the cause on behalf of respondent
(Andrew B. Lane, attorney; Frank B.
McLaughlin, pro se, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
This is a bar-admissions case. It arises from the report and recommendation of the Supreme Court Committee on Character that the required certification of good character be withheld from a candidate for the July 1994 New Jersey Bar Examination. The recommendation was based on the Committee's conclusion that
the candidate did not demonstrate the fitness and good character
essential for the practice of law.
The case requires the Court to explain the standards for
evaluating character and fitness for the practice of law, and to
reemphasize the importance of these requisites for admission to
the bar. More specifically, the Court must address truthfulness
and respect for the administration of justice as traits of
character and fitness that are deemed indispensable to a lawyer.
Frank B. McLaughlin sat for the July 1994 New Jersey Bar Exam. Mr. McLaughlin ("McLaughlin" or "candidate") was a graduate of Rutgers Law School-Newark where he was Book Review Editor of the Rutgers Law Review. Before attending law school, McLaughlin was a claims analyst for American Reinsurance in Princeton, New Jersey, from October 1988 to September 1991. Following his graduation from law school, he completed and submitted his application to sit for the July exam on May 29, 1994. His application was reviewed in normal course. A routine fingerprint check revealed a prior arrest that was apparently not disclosed in McLaughlin's application. The Committee on Character, established under Rule 1:25 to assess the character qualifications of candidates for admission to the bar, reviewed the candidate's application in an informal conference pursuant to Regulation 303 of the Regulations Governing the Committee on Character (RG 303). Although the Court has determined that the
July 1991 version of the Regulations should be applied to
McLaughlin's application, references will be made herein to more
current Regulations.
On August 25, 1995, the hearing panel of the Committee
issued its report recommending that the Court withhold the
character certification of McLaughlin. Its recommendation was
based on a pattern of lack of candor exhibited by McLaughlin's
failures to disclose or truthfully to characterize incidents in
his history. The panel also found McLaughlin's demeanor at the
hearing and in the course of the proceedings an additional reason
to withhold certification. McLaughlin thereafter waived his
right to a Review Hearing by a Statewide Panel as provided by the
appeal rules governing procedures before the Character Committee.
RG 304. The candidate then appealed directly to this Court to
review the Committee's decision. RG 304:7.
The Character Committee's review of the candidate's application for admission to the bar was prompted by insufficient disclosure of three prior events in the candidate's history: an arrest in Brighton, Mass., an arrest in Hoboken, N.J., and circumstances relating to personal automobile insurance.
1. The Brighton arrest
All candidates for the New Jersey Bar are required to submit
fingerprint cards to facilitate investigation of any criminal
history. The fingerprint check on McLaughlin turned up a 1985
felony arrest for larceny of a motor vehicle in Massachusetts.
As a result of the fingerprint check, McLaughlin's file was
flagged for investigation of the apparent non-disclosure of the
1985 arrest.
The Character Committee discovered that this charge had been
downgraded to a misdemeanor charge of using a motor vehicle
without authority, and that McLaughlin entered into a conditional
discharge program without a plea, conditioned on an alcohol abuse
evaluation by a psychiatrist, and payment of costs and
restitution.
McLaughlin's application form itself revealed no mention of
the Brighton incident, despite the fact that the form
specifically requested such disclosure and provided space for
brief answers.See footnote 1 Furthermore, none of the three attachments
fastened to McLaughlin's Candidate Statement (a "Job History"
consisting of two pages; a one-paragraph explanation of a 1994
disorderly persons arrest in Hoboken, N.J.; and a one-paragraph
explanation of a suspension of his New York driver's license)
referred to the 1985 Massachusetts arrest.
When the Character Committee contacted McLaughlin regarding
the apparent nondisclosure, McLaughlin requested a copy of his
application papers because he had not kept one, even though all
candidates are instructed to save a copy for their records.
Thereafter, McLaughlin sent the Committee an affidavit,
dated November 15, 1994, with a one-page attachment summarizing
the 1985 arrest. See attachment, infra at __ (slip op. at 7-8
n.4). In the affidavit, McLaughlin claimed that he originally
submitted the attachment to the Board of Bar Examiners with the
Certified Statement. He explained that he completed all of the
attachments in the same day at the Rutgers Law Review offices,
and even showed the description of the 1985 incident to some
persons who were in the offices that day.
At the hearing, McLaughlin contended that the attachment was
included with his application, but that the Committee had lost
it. Although he admitted that he was not "infallible," and
explained that he might have forgotten to include the attachment
in his application, McLaughlin asserted that his principal belief
was that he had submitted the document with his Certified
Statement and that the Committee had lost it. Character
Committee Staff Attorney Martha Treese testified at the Hearing
that she had personally checked the application papers that were
originally submitted by McLaughlin and found no such attachment.
She further testified that because the other attachments were
securely fastened to the Certified Statement, she had no reason
to believe that a member of her staff had lost the document
referring to the Brighton arrest.
Though he claimed that he did not keep a copy of the
original application papers, McLaughlin testified at the hearing
that he did save the attachment regarding the 1985 arrest.
McLaughlin also claimed that he did not attach the arrest records
for the 1985 arrest because they were under seal and he was
unable to obtain them. Immediately after the hearing, however,
the candidate was able to obtain copies of the 1985 arrest
records and provide them to the panel. McLaughlin explained this
incongruity by asserting that he was only able to retrieve those
records after the hearing because he could claim that they were
needed for a court appearance.
In his affidavit submitted prior to the hearing, McLaughlin
claimed that he showed the document recounting the 1985 arrest to
"various members of the Computer and Technology Journal, certain
members of the Law Review and other law students and friends."
When questioned at the hearing regarding those persons, however,
McLaughlin admitted that when he contacted them prior to the
hearing, they had no recollection of seeing the document relating
to his 1985 arrest.
The candidate produced two witnesses at the hearing, both of
whom testified that they had seen or heard the substance of the
attachment referring to the 1985 arrest. Both witnesses were
unable to provide exact dates for their reading or hearing of the
attachment, though one witness asserted that the statement was
read to her over the phone on the day it was due, because
McLaughlin called her later that day to tell her he had mailed
his application.
Although McLaughlin claimed the testimony demonstrated that
he eventually decided to disclose the 1985 incident by attaching
a description to his Certified Statement, at best, the witnesses'
testimony indicated only that the candidate may have prepared a
statement regarding the arrest at the time he submitted his
application.
The Character Committee panel noted the stylistic and
formatting differences between the descriptions included in the
original application, and the description of the 1985 incident
that McLaughlin later sent to the Committee. For example, the
panel noted that the account of the 1985 arrest was several
paragraphs long and included paragraph indentations; in contrast,
the descriptions originally included with McLaughlin's Certified
Statement were single-paragraph accounts with no indentations.
In addition, although McLaughlin asserted that the other details
of the writings were the same, such as the margin width and
typeface, the panel inferred that the writings were not completed
at the same time in light of the "florid language" and flippant
tone of the 1985 description, which differed from the spare
diction and straightforward tone of the other items.See footnote 2
2. The Hoboken arrest
Another item indicating a lack of candor on McLaughlin's
Candidate Statement concerned a 1994 Hoboken disorderly persons
arrest.See footnote 3 Notably, the panel found that applicant's explanation
of this arrest arising from his involvement in a "peaceful
political protest" was disingenuous. Further investigation by
the panel revealed that McLaughlin's brief rendition of the
incident set forth in his application was incomplete and
misleading.
JoAnn Italiano, Staff Investigator for the Committee on
Character, described her investigation into the incident as
follows:
On March 22, 1995, at approximately 7:00
pm, I telephoned Detective Richard Burgos
[the arresting officer in the disorderly
conduct offense] from the Hoboken Police
Department in reference to his arrest of Mr.
McLaughlin on April 30, 1994. Detective
Burgos recalled the incident and stated Mr.
McLaughlin was on the front steps entrance of
the Hoboken Police Department at around 2:30
am. He was accompanied by a couple of
friends. They were on the steps waiting for
a friend who was arrested earlier in the
evening. Mr. McLaughlin appeared very
intoxicated and was using abusive language
while blocking the main entrance to the
police department. This incident occurred
during the weekend, early Sunday morning, and
Detective Burgos stated their [sic] is alot
[sic] of pedestrian activity entering and
exiting this entrance. When Detective Burgos
told Mr. McLaughlin and his friends to leave,
his friends apologized and left, while Mr.
McLaughlin continued to block the entrance
and use abusive language. After several
attempts to get Mr. McLaughlin to leave and
he refused he was placed under arrest and
charged with [a violation of N.J.S.A.] 2C:33-2 (b) [of the] disorderly persons act.
In a motion in Hoboken municipal court challenging the
arrest, McLaughlin stated that the incident began when, "for lack
of anything better to do," he launched into a monologue
consisting mainly of jokes about police officers' fabled fondness
for donuts. He related that "[a] few minutes later, when I was
nearing the apex of my comic ability, Detective Borgos approached
me and told me to take my 'comedy act somewhere else.'"
McLaughlin was charged with a disorderly persons offense for
using offensive language and failing to leave when asked. The
trial court ruled that the offensive language charge was
unconstitutional, and offered the prosecutor an opportunity to
amend the charge. The charge was amended to reflect a failure to
move at the direction of a police officer. The amended charge
was eventually dismissed, however, because the arresting officer
failed to appear at subsequent hearings.
3. Circumstances relating to personal automobile insurance
The panel also identified McLaughlin's pattern of dealings
with his automobile insurer as further indication of McLaughlin's
lack of candor. McLaughlin testified that he resided only in New
Jersey since his graduation from college in 1988, but that during
that time, he registered two cars in New York State, using his
parents' address in upstate New York. He testified that he did
so in order to obtain lower insurance rates for the kind of high
coverage limits he wanted. McLaughlin further stated at the
hearing that he now knows his behavior was illegal.
Moreover, although McLaughlin did indicate in his
attachments to the Certified Statement that his New York license
was suspended for a time in 1993 due to nonpayment of premiums,
he failed to reveal that the license, reinstated in January 1994,
was subsequently suspended again in June 1994 for operation of a
vehicle without insurance.See footnote 4 The candidate testified at the
hearing that he first knew about the revocation of the license in
July 1994. Though McLaughlin acknowledged that he knew he had a
continuing duty to report the change in his driver's status, and
stated that he meant to tell the Committee, he did not disclose
any information regarding the incident to the Committee until a
Committee investigator questioned him in November 1994.See footnote 5
The panel also noted that the applicant failed to submit a
driver's license abstract (a record of the individual's driving
history) though all candidates are required to submit such
documentation. McLaughlin testified that he did not submit a
driver's license abstract because he did not know what an
abstract was. The Panel questioned McLaughlin's failure to
inquire into the nature of an abstract, asking why he did not
contact the Bar Admissions office or the Department of Motor
Vehicles, either of which would have supplied him with the
relevant information. McLaughlin provided no explanation for his
failure to investigate how to obtain the driver's license
abstract.
The second major area of concern relating to the candidate's character and fitness arises from the candidate's conduct before the panel and his treatment of court personnel during the course of these admission proceedings. McLaughlin's responses throughout were intemperate and inappropriate; the content and tone of his communications were sarcastic, flippant, and snide; his attitude condescending and disrespectful.
An example relates to the panel's concern about the differences between the content and format of the attachment to
the Candidate Statement and that of the subsequently-submitted
document explaining the 1985 Brighton arrest. The panel explored
the apparent discrepancy with the candidate:
[Candidate]: They are the exact same -- we
can carbon-date them if you would like, those
are --
[Panelist Rand]: I assume you are being
facetious.
[Candidate]: I was being facetious.
The record reveals another instance when the candidate was
impatient and snide with the panel members. This dialogue
occurred in reference to a panel member's question regarding a
possible problem with alcohol:
[Panelist Matthews]: . . . have you ever
abused alcohol subsequent to that time?
[Candidate]: In what respect abused alcohol?
[Panelist Matthews]: Let me define it for you in a way you might understand it[:] to such an extent where you were slurring your speech, not able to walk a straight line, not able to touch your nose with your fingers with your eyes closed, or similar types of lack of control over your physical abilities.
[Candidate]: I have never attempted or been
asked to attempt to touch my nose while
drinking, that would not be the point.
However, I would certainly concede that on
occasion I perhaps would not have been able
to touch my nose accurately if asked to do
so. As well, walking a straight line, I
would probably -- probably there have been
times, and if you are asking, have I not been
able to walk a straight line at certain times
in the ten years subsequent to that event, I
would have to concede, yes, guilty as
charged.
As these exchanges indicate, the candidate acted as if the
panel's questions were amusing, irrelevant, or unimportant. The
candidate's inappropriate remarks in response to inquiries do not
appear to have been inadvertent, impulsive, or aberrational. Nor
does his apology following the offer to "carbon-date" his
submissions appear to have been genuine: he later characterized
that exchange as follows: "[a]t this point [I] was interrupted
and roundly chastised by Panelist Rand for having introduced
science into the realm of rank speculation, and was never given
the opportunity to expand upon his explanation."
His correspondence with court personnel following the
hearing provides more extreme examples of sarcasm, flippancy, and
inappropriate responses about certain matters. For example,
McLaughlin, complaining of delay, described Samuel Uberman, the
Assistant Secretary of the Board of Bar Examiners, as "the odious
Uberman," and "either a liar or an incompetent, perhaps both,"
adding "[t]hough Christian charity demands that I resolve my
doubts in [Uberman's] favor, and simply attribute his inaction to
mere sloth and an ability deficit, I suspect that his torpor is
motivated by ill-disguised hostility towards my application."
The Clerk of the Court replied to McLaughlin's letters,
containing those expressions, viz:
I acknowledge receipt of your faxed
letters of July 5, 1995, and July 17, 1995,
in respect of your application for admission
to the bar of New Jersey. Although I asked
Mr. Uberman for a status report on your
application immediately after receiving your
letter -- which he promptly gave me -- I set
your correspondence aside for a time to allow
first impressions to fade. I wanted to be
able to respond to the merits of your request
and not the hyperbole and intemperate remarks
that clouded the otherwise reasonable basis
for your inquiry; that is, the amount of time
it was taking to resolve your matter before
the Committee.
Although it should not be necessary to
state, I assure you that neither this office
nor the members of the Committee on Character
have any interest in delaying the process.
McLaughlin then replied to the Clerk's letter:
I acknowledge your assurance that Uberman
and the other Committee members have no
"interest in delaying the process."
Nevertheless, the implication that my
suspicions were somehow unwarranted is as
untenable as the statement that "the Panel
members wish to resolve this matter as
expeditiously as possible" is comical.
Although all evidence indicates that
Uberman is, at the very least, guilty of
exercising malevolent neglect towards my
Application to the Bar, I have consistently
allowed the possibility that the delays are
simply a measure of the man. * * * But
why did Uberman delay distribution of an
initial draft of the Panel's report -- was it
malice or incompetence? While I should not
have to pose the question, I would be remiss
if I did not under the circumstances.
However, notwithstanding the foregoing, I
accept your tacit apologies for the delay and
anticipate that you personally will act to
see this disgraceful affair through to its
conclusion in an expeditious manner. Further
I expect that you will promptly advise me of
an anticipated date of completion, and that
you will cleave unto that date with a resolve
that rivals Uberman's unwavering commitment
to lethargy.
McLaughlin ended the letter with a footnote: " How's that for
intemperate hyperbole?"
This Court in Application of Matthews, 94 N.J. 59, 74 (1983), addressed the nature of its jurisdiction over admission to the practice of law and the framework within which this authority and responsibility may be delegated in part to duly constituted agencies of the Court. The Court noted in Matthews that its Character Committee is authorized to review and investigate applicants for admission to the bar and to conduct hearings in conjunction with that responsibility. The Court, however, retains the power to conduct an independent review of the record in cases concerning character applications, although it "[n]ormally [accords] great deference . . . to findings based on testimonial evidence, because of the opportunity "to observe the demeanor of witnesses and the character of their testimony." 94 N.J. at 74.
Additionally, Matthews underscored the importance of the level of proof in character cases, instructing that "unless such evidence of unfitness is clear and convincing, any lingering doubts as to the ability of the candidate to undertake the professional responsibility of a lawyer can be resolved in his or her favor and admission to the bar should be allowed." Matthews, supra, 94 N.J. at 78. We note that under our current standards governing bar admissions an applicant has the burden to demonstrate by clear and convincing evidence the requisite character to practice law. RG 303:6 (1996).
In this case, we have undertaken an independent review of
the record under the standards expressed in Matthews. We concur
in and accept the conclusions of the panel below, particularly
those based on perceptions of credibility.
This Court emphasized in Matthews that the character traits
required of applicants for admission "should be formulated in
terms of the qualities of character that attorneys must possess
in order to fulfill their obligations to individual clients and
to the judicial system." 94 N.J. at 77. We stated that:
[t]his Court has consistently held bar
membership to be a privilege burdened with
conditions. Among the most basic conditions
precedent to bar admission are "good moral
character, a capacity for fidelity to the
interests of clients, and for fairness and
candor in dealing with the courts."
Accordingly, we conclude that a bar
applicant must possess a certain set of
traits -- honesty and truthfulness,
trustworthiness and reliability, and a
professional commitment to the judicial
process and the administration of justice.
We note at the outset that the candidate protests that he is not yet an attorney and thus must be judged as an average person, not by the standards imposed on the members of the Bar. He also claims that he lacked adequate notice of the criteria by which his character is now being judged. The argument is fatuous. Candidates for the bar are expected to understand and satisfy the personal, educational and professional requisites that inhere in good character and fitness and are indispensable in one seeking
authorization to engage in the practice of law. Good character does not emerge on licensure. It is absurd to suggest that good character is not revealed until a person becomes an attorney. The fundamental character traits of honesty and truthfulness are not valued in the abstract, but are assumed to be inherent aspects of one's personality; they can, and must, be considered the measure of a candidate's eligibility to seek admission to practice law and ability to fulfill the responsibilities of the legal profession.See footnote 6 A graduate of law school who is a candidate for admission to the bar cannot credibly profess ignorance of the
traits of good character and fitness that are requirements of the
legal profession.See footnote 7
Matthews identified truthfulness and honesty as traits of character that are the prerequisites for admission to the bar. 94 N.J. at 75, 77. Those standards were reiterated in Application of Jenkins, 94 N.J. 458 (1983):
[I]f a candidate conceals the truth or misleads the Committee concerning events in his past that adversely affect his character, the process for reviewing candidates will collapse and no purpose will be served. The purpose of withholding certifications is not to punish the candidate but to protect the public and preserve the integrity of the Courts. We have long and firmly held that "there is no place in the law for a man or woman who cannot or will not tell the truth, even when his or her own interests are involved. In the legal profession, there must be a reverence for the truth."
The treatment of the 1985 arrest demonstrates a lack of truthfulness and candor. In light of the evidence and circumstances surrounding this issue, the panel concluded that McLaughlin "did not include any documentation of the January 1985 arrest in Brighton, Massachusetts with his May 28, 1994, bar
application." Furthermore, the panel ruled that "[w]e frankly do
not accept the representations that McLaughlin made in his
November 15, 1994, affidavit and we further regard them to have
been knowingly false."
The panel clearly did not credit the testimony of
McLaughlin's witnesses. They had no personal knowledge about
whether McLaughlin ever submitted the affidavit and were able to
testify only about what McLaughlin told them of the contents of
his application. Based on our independent review of the record,
we conclude that the evidence is clear and convincing that
McLaughlin did not include the subsequently-submitted statement
regarding the arrest with his original application, and determine
that his failure to submit the information to the Committee on
Character was willful and intentional.
Lack of candor is also reflected by the candidate's
disingenuous characterization of the Hoboken disorderly persons
arrest. Although the panel found that the 1994 arrest for
disorderly conduct was a "minor incident," the panel was
disturbed by the applicant's attempts to glorify the incident as
a "free speech" matter. This Court recognizes that the statute
under which McLaughlin was first charged was unconstitutionally
broad. However, to characterize the conduct that led to the
arrest as a "peaceful political protest" is a transparent deceit.
McLaughlin's assertion at the hearing that he was essentially
protesting the "unlawful confinement" of his friend served only
to perpetuate his mischaracterization of the situation.
The basis for this Court's concern is not the gravity of the
misconduct that led to McLaughlin's arrest. McLaughlin's own
moving papers in the original proceedings indicate that he was
engaged in police-baiting. It is his self-serving statement that
his conduct was a "peaceful political protest" that is inaccurate
and misleading. This description was intended to camouflage the
unflattering incident. That kind of dissembling reflects an
indifference to the need to be completely truthful and candid.
Furthermore, it denotes a failure to appreciate that truthfulness
and candor apply to all matters that are relevant under the
character standards governing admission to the bar.
The candidate's handling of his automobile insurance also
indicates a lack of honesty. The panel found McLaughlin's
behavior in respect of his insurer was particularly egregious in
light of the fact that McLaughlin had himself worked in the
insurance industry. Despite McLaughlin's insistence that he had
no general knowledge of automobile insurance because he worked in
the specialized area of reinsurance, his own testimony at the
hearing belies such a claim. For example, he testified that he
registered his vehicles in upstate New York to obtain "the high
limits I wanted in terms of 100,000/300,000 coverage."
Furthermore, the panel viewed the candidate's explanation of
his failure to obtain and submit a driver's license abstract, as
required in the application, as indicating a lack of candor.
McLaughlin's failure to register his vehicle in New Jersey, and
his admission that he failed to do so in order to save on
insurance costs, as well as his unjustified failure to secure and
submit a driver's license abstract, all lend further support to
the conclusion that McLaughlin was neither forthright nor candid
in his application and his subsequent dealings with the Committee
and the Court.
In this case, the instances of duplicity are more than
isolated occurrences; rather, they constitute a pattern of
behavior that demonstrates a clear and convincing lack of
"reverence for the truth." Jenkins, supra, 94 N.J. at 470.
Though each episode of dishonesty or lack of candor is not
particularly egregious, taken as a whole, the pattern reflects
insensitivity and indifference to the need for full and accurate
disclosure. This evidence clearly and convincingly warrants the
conclusion that McLaughlin lacks truthfulness and candor, or does
not sufficiently understand and appreciate the importance of
these qualities of character.
The panel determined that McLaughlin's attitude and demeanor in his dealings with the panel and with court administrative personnel demonstrated a lack of respect for the administration of justice.
The candidate again argues a "lack of notice" with regard to the consideration of his demeanor in his dealings with the Committee Panel and other court employees. That contention also lacks merit. The Matthews and Jenkins opinions clearly teach
that the "applicant's attitude as expressed in hearings before
the Board of Bar Examiners and any reviewing courts" will be a
factor in determining the candidate's present fitness. Matthews,
supra, 94 N.J. at 82; Jenkins, supra, 94 N.J. at 471.See footnote 8
McLaughlin's demeanor and expressions in his correspondence
with judiciary officers and employees give ample cause to
conclude that he has an insufficient appreciation for the proper
administration of justice. McLaughlin was condescending and
inappropriately sarcastic while addressing the panel members. He
denigrated inquiries into substance abuse even though his own
submissions and testimony indicated the legitimacy of the
Committee's concern. He treated dismissively observations and
comments by panel members intended to elucidate their inquiry.
Also, he twisted highly relevant questions seeking the truth as
to when material documents were submitted. McLaughlin compared
the panel to the infamous inquisitor, Torquemada, and
characterized the proceedings as a "ritual slaughter" and a
"pharisaical inquiry". Additionally, he resorted to extreme
personal vilification against court employees, indirectly
characterizing one as lethargic, slothful, and torpid; as
incompetent, negligent, and ability-deficient; and as odious,
lying, hostile, malicious, and malevolent.
The candidate's conduct in dealing with the Character
Committee and with other judiciary personnel borders on contempt.
We have previously noted that:
Contempt comprehends any act which is
calculated to or tends to embarrass, hinder,
impede, frustrate or obstruct the court in
the administration of justice, or which is
calculated to or has the effect of lessening
its authority or its dignity; or which
interferes with or prejudices parties during
the course of litigation, or which otherwise
tends to bring the authority and
administration of the law into disrepute or
disregard. In short, any conduct is
contemptible which bespeaks of scorn or
disdain for a court or its authority.
[In re Daniels,
118 N.J. 51, 68-69
(1990) (citations omitted)].
In In re Vincenti,
92 N.J. 591, 603 (1983) (hereinafter
Vincenti I), we recognized a "requirement that lawyers display a
courteous and respectful attitude not only towards the court, but
towards opposing counsel, parties in the case, witnesses, court
officers, clerks -- in short, towards everyone and anyone who has
anything to do with the legal process." As we have noted:
"[v]ilification, intimidation, abuse and threats have no place in
the legal arsenal." In re Vincenti,
114 N.J. 275, 282 (1989)
(hereinafter Vincenti II).
In Vincenti II, we analyzed contentious behavior by an
attorney in terms of its effect on the judicial system:
Respondent's conduct is intolerable because
it has an effect that tends to undermine the
proper administration of justice. Conduct
calculated to intimidate and distract those
who, though in an adversarial position, have
independent responsibilities and important
roles in the administration of justice cannot
be countenanced. * * * Thus, the undue
and extraneous oppression and harassment of
participants involved in litigation can
impair their effectiveness, not only as
advocates for their clients, but also as
officers of the court.
Officers of the court should not be required to fight through insults and gratuitous accusations of bias in order to preserve their objectivity and fairness. Vituperative behavior creates an atmosphere that can threaten the proper discharge of court functions, including the supervision of bar admissions, and ultimately disserves the public.
We recognized in Vincenti I, the harmful effects on the justice system that can arise in an atmosphere poisoned by the lack of civility and basic respect:
The prohibition of our Disciplinary Rules against "undignified or discourteous conduct degrading to a tribunal" is not for the sake of the presiding judge but for the sake of the office he or she holds. Respect for and confidence in the judicial office are essential to the maintenance of any orderly system of justice. This is not to suggest that a lawyer should be other than vigorous, even persistent, in the presentation of a case, nor is it to overlook the reciprocal responsibility of courtesy and respect that the judge owes to the lawyer. Unless these respective obligations are scrupulously honored, a trial court will be inhibited in performing two essential tasks: sifting through conflicting versions of the facts to discover where the truth lies, and applying the correct legal principles to the facts as found. Under the best of circumstances these tasks are difficult; without an orderly environment they can be rendered impossible.
The institutional mischief wrought by such abusive conduct
is not merely theoretical. Thus, here, to assure that
McLaughlin's complaints would be addressed on their merits, the
Clerk of the Court found it necessary to delay a response to
McLaughlin's letters in order to avoid being distracted by the
applicant's intemperate remarks. Supra at __ (slip op. at 15-16).
"An attorney who exhibits . . . lack of civility, good
manners and common courtesy . . . tarnishes the entire image of
what the bar stands for," Vincenti II, supra, 114 N.J. at 282-83
(citing In re McAlevy,
69 N.J. 349 (1976)). The censure of such
behavior, however, is justified not merely to enhance the image
of the courts and the legal profession. The judiciary does not
seek simply to encourage good manners or to foster courtesy and
politeness. Rather, it seeks to suppress incivility, which, if
tolerated and unchecked, can render the transaction of judicial
business impossible.See footnote 9 An orderly environment based on ordinary
civility and common decency is essential for the justice system
to run evenly. Here, the extreme opposite of civility and
decency -- impudence and insolence -- epitomized McLaughlin's
attitude. Such marked disrespect for judicial personnel,
procedures and institutions belies the fidelity to the
administration of justice that must be possessed by members of
the legal profession.
In light of McLaughlin's failures to disclose and fully and accurately to explain items on his Candidate Statement, it is clear that McLaughlin "does not possess the character traits of truthfulness and honesty that are the fundamental elements for admission to practice." Jenkins, supra, 94 N.J. at 471. His demeanor and treatment of members of the Committee on Character and other judiciary employees further demonstrate a disrespect for the administration of justice.
McLaughlin still does not understand or appreciate what caused the Committee to recommend the withholding of his character certification. Indeed, McLaughlin appears to regard
his past poor conduct dismissively. He seems indulgently to
regard himself merely as a failed humorist. Moreover, he feels
unjustifiably burdened by this process, which seeks confirmation
of good character and professional fitness. McLaughlin's lack of
insight into his shortcomings leads this Court to conclude that
he is not currently a worthy candidate for admission to the New
Jersey Bar.
Nevertheless, we recognize the possibility that although the
candidate exercised extremely poor judgment and exhibited
inappropriate and unacceptable behavior evidencing a lack of
requisite good character and fitness, those flaws may not be
deep-seated or irremediable. We are mindful that the underlying
events that gave rise to these matters were not themselves
terribly serious or indicative of any enduring disqualification
to engage in the practice of law. In Matthews, the Court
recognized that reform and rehabilitation are possible and hence
relevant in determining an applicant's essential good character
and fitness to practice law. 94 N.J. at 81. Matthews listed a
variety of types of evidence that have been found probative of
reform and rehabilitation, including candor and respect before
the Committee. "In all instances, the applicant must display
complete candor in all filings and proceedings required by the
Committee on Character. Courts will weigh heavily the
applicant's attitude as expressed in hearings before the Board of
Bar Examiners and any reviewing courts." Id. at 82.
We believe that McLaughlin should be given opportunity to
rehabilitate himself, overcome the flaws thus far indicated, and
demonstrate the required character traits of honesty, candor and
genuine respect for the administration of justice.
Accordingly, we adopt the Committee's recommendation and
direct that certification of the candidate's character and
fitness be withheld, without prejudice to the candidate's right
to present to the Committee, no earlier than six months from the
filing date of this opinion, evidence of rehabilitation in
accordance with Application of Matthews,
94 N.J. 59 (1983) and
this decision.
So ordered.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.
NO. E-22 SEPTEMBER TERM 1995
On an Order to show cause why respondent should not be certified for
admission to the bar.
IN THE MATTER OF
THE APPLICATION OF
FRANK B. MCLAUGHLIN,
FOR ADMISSION TO THE
BAR OF NEW JERSEY.
DECIDED May 20, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The application consists of a "Certified Statement of
Candidate," which is a sixteen-page questionnaire. Question X,
part B on page 10 of the Statement asks whether the candidate had
ever been "charged with, arrested for, or convicted of, the
violation of any law (other than minor traffic violations)." The
question further specifies that "the entry of an expungement or
sealing order does not relieve you of the duty to disclose the
matter on this statement." McLaughlin responded affirmatively to
this question, indicating a prior charge.
McLaughlin also responded in the affirmative to Part E of
Question X, located on the same page, which asked whether
candidate was "currently the subject of any investigation or
inquiry by any Federal, state, local or administrative agency
relating to the alleged violation of law, rule, regulation or
other legal standard[.]"
Also on the same page is Part F, which instructs that if the candidate has responded affirmatively to any part of Question 10, the candidate is required to "state the nature of the
proceeding and give full details, including narrative of facts,
dates, case numbers, name and location of court, if any,
references to court records, facts and disposition. Attach
copies of all arrest records, court documents and certificates of
disposition." In response to this section, McLaughlin checked
the box that indicated further documentation was attached.
Footnote: 2 The statement described the Brighton arrest as follows:
In January of 1985, at the age of
eighteen, I was arrested on charges of theft
of a motor vehicle. That charge was
subsequently reduced to "misappropriation of
property," a misdemeanor. The case was
subject to pretrial intervention and the
record was sealed. I was arrested by Boston
College Police on the campus of Boston
College. I was arraigned and tried in
Brighton, Massachusetts. I have been advised
that my records are sealed and are
unavailable, even to me.
The salient facts of the matter, to the
best of my imperfect memory, are as follows.
In late January, 1985, myself and several
fellow Providence College freshmen hitchhiked
to Boston to see the Boston College hockey
game. During the course of the afternoon,
prior to the game, we, myself in particular,
became intoxicated. Due to my relative
inebriation, I was ejected, alone, from the
hockey arena long before the scheduled end of
the game.
Left to my own devices and armed only with a severely diminished intellectual awareness, I was struck by two distinct realities. The first was that I was a stranger in a strange land. The second was that it was very dark and very cold. I decided then that I must first forage for shelter and then recoup my wits and assess the situation. Shelter came in the form of an unlocked Jeep on the front lawn of a party. Once inside the Jeep, I began to fiddle haphazardly with the controls, with a mind towards turning the radio on. As bad luck would have it, the
ignition caught and lo, the car itself was
on. Insatiably curious, I sought to confirm
that the car was actually on, which struck me
as decidedly unlikely, by putting it into
gear. Things rapidly went from bad to worse.
No sooner had I confirmed that the car
was, in fact, engaged, than I was set upon by
the putative owners of the vehicle. With
hostiles in hot pursuit, I decided that
flight was the expedient decision. Having
only received my license some six month
previous, and polluted beyond redemption, I
did not get far in my ill advised escape,
before crashing into another parked vehicle.
In due course I was arrested.
As previously stated, I was arrested and
ultimately found guilty in Brighton court of
a misdemeanor. My penalty was full
restitution to the owners of both vehicles,
six months probation, after which my record
was sealed, and counseling regarding alcohol
abuse. I complied and the record was sealed.
Unfortunately, I have no documentation
regarding this incident, and all inquiries
have been rebuffed.
The style and content of this statement contrasts sharply
with the other statements that were undisputably attached to the
candidate's application. See statements, infra at __ (slip op.
at 9 n.3) and at __ n.4 (slip op. at 12 n.4).
Footnote: 3 McLaughlin's entire description of the Hoboken incident
attached to his application reads:
On April 30, 1994 at approximately 2:30 in the morning I was arrested on the steps of the Hoboken Police Headquarters where I was engaged in a peaceful political protest. I was originally charged under NJSA 2C:33b for
engaging in offensive speech. This charge
was dismissed by Judge London, Hoboken
Municipal Court, on May 25, 1994, on the
basis that the statute was unconstitutional.
Prior to dismissal, Judge London gave the
police officer and prosecutor the opportunity
to rewrite the charge. The charge was
rewritten as a municipal violation for having
disturbed the peace by refusing to leave the
steps of police headquarters. I have opted
to have this case tried. As yet, no trial
date has been set.
Footnote: 4 McLaughlin's attachment regarding his driver's license
suspension reads, in its entirety:
My NY license was suspended for a brief period earlier this year for failure to pay auto insurance premiums. Unfortunately, I was impoverished at the time, and did not have the money until some time later. Ultimately, upon payment, my license was restored. At no time did I operate the vehicle while the insurance was lapsed. Footnote: 5 McLaughlin stated that due to a medical emergency in a friend's family, he drove his car into Manhattan, knowing that the vehicle was uninsured. He was stopped for lapsed registration, and, as a result of a review of the vehicle's paperwork, he was given a ticket for driving with lapsed insurance. According to McLaughlin, due to financial problems
and difficulties in receiving forwarded mail, he failed to pay
the fine imposed with the ticket, and his license was later
revoked in October 1994.
Footnote: 6 The Regulations Governing the Committee on Character
effective at the time of McLaughlin's review provide ample notice
of the evaluative criteria. RG 303:2 provides examples of the
type of conduct that will trigger additional investigation by the
Character Committee, including "lack of full disclosure by the
Candidate to the Committee;" "arrest for or conviction of a
crime, (even if expunged);" and even current substance abuse.
Besides instructing that the candidate's "failure or refusal to
supply information" may constitute grounds for withholding
certification, RG 202 prescribes the "duty of each candidate
. . . to disclose all available information requested by the
Committee on Character," and also imposes a "continuing duty to
disclose changes that occur with respect to information given in
response to questions on the Statement." The instructions for
filling out the Candidate Statement describe similar obligations
of candor. Supra at n.1 (slip op. at 4 n.1).
In addition, the opinions in Matthews and Application of
Jenkins,
94 N.J. 458 (1983), clearly articulate that candidates
will be evaluated in terms of their willingness to disclose
information on the application and in response to subsequent
requests of the Character Committee. Matthews, supra, 94 N.J. at
75; Jenkins supra, 94 N.J. at 466-67.
These principles are reflected in the most recent amendments
to the Regulations Governing the Committee on Character, which
create a rebuttable presumption that nondisclosure of a material
fact on the Candidate Statement is prima facie evidence of lack
of good character. RG 303:3 (1996).
Footnote: 7 Candidates for admission to the bar must complete a law
school course or pass a national examination on professional
ethics. Those include general standards governing professional
ethics applicable to attorneys. Our Rules of Professional
Conduct expressly proscribe "dishonesty," "deceit," and
"misrepresentation," as well as "conduct that is prejudicial to
the administration of justice," as "professional misconduct."
RPC 8.4(c), (d).
Footnote: 8 Moreover, that standard has also been codified in the
amended regulations. The regulations now explicitly state that
the Candidate's candor and honesty before the Conference
constitutes a factor to be considered in establishing the
candidate's current fitness. RG 303:6 (1996).
Footnote: 9 Chief Justice Warren E. Burger stated in remarks to the
American Law Institute in Washington D.C., on May 18, 1971:
Someone must teach that good manners,
disciplined behavior, and civility -- by
whatever name -- are the lubricants that
prevent lawsuits from turning into combat.
More than that, civility is really the very
glue that keeps an organized society from
flying into pieces. * * * I submit that
lawyers who know how to think but have not
learned to behave are a menace and a
liability, not an asset, to the
administration of justice.
[Catherine Terese Clarke, Missed Manners in Courtroom Decorum, 50 Md. L. Rev. 945, n.87 (1991) quoting Warren E. Burger, Delivery of Justice 175 (1990).