2014 VT 28


In re Hirsch (2012-107)
 
2014 VT 28
 
[Filed 28-Mar-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2014 VT 28

 

No. 2012-107

 

In re John A. Hirsch


Supreme Court


 


 


 


On Appeal from


 


Board of Bar Examiners


 


 


 


December Term, 2013


 


 


 


 


Karen
  R. Carroll, J., Commissioner, Specially Assigned


 

John A. Hirsch, Pro Se, Columbia,
Maryland, Petitioner-Appellant.
 
William H. Sorrell, Attorney General, and Mark J. Patane, Assistant Attorney General,
  Montpelier, for
Respondent-Appellee.
 
 
PRESENT:   Reiber, C.J.,
Dooley and Skoglund, JJ., and
Morris (Ret.) and Zimmerman (Ret.),
                    
Supr. JJ., Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   Applicant John Hirsch appeals from a
commissioner’s report recommending that he be denied admission to the Vermont
bar on the basis of a current unfitness to practice law.  Applicant
challenges a number of Vermont admission practices and rules as violative of the Americans with Disabilities Act (ADA) and
the U.S. and Vermont Constitutions, claims that he was provided constitutionally
deficient notice of the Character and Fitness Committee’s reasons for the
denial, and contends that the commissioner’s findings and conclusions are
unsupported.  For the reasons set forth below, we adopt the commissioner’s
recommendation, and deny the application for admission to the bar.   
¶
2.            
The factual and procedural background may be summarized as
follows.  Applicant first applied for admission to the Vermont bar in
2004.  The Character and Fitness Committee denied his application based on
a failure to demonstrate fitness to practice law, and applicant appealed. 
This Court appointed a commissioner to hear applicant’s appeal pursuant to
former § 11(j) of the Rules of Admission to the Bar.  The commissioner
concurred in the Committee’s decision, but recommended that applicant be
allowed to reapply for admission if he met certain conditions, including twelve
continuous months of active mental health treatment, compliance with treatment
conditions, and achievement of insight into his illness and the need for
ongoing treatment.    
¶
3.            
In September 2008, applicant reapplied for admission to the Vermont
bar.  Applicant submitted authorizations for release of his medical
records and paperwork to demonstrate his compliance with the judge’s
conditions.  After the bar admissions administrator received the National
Conference of Bar Examiners (NCBE) investigation summary in March 2009, she
requested updated releases and further disclosures from applicant, and gathered
supplemental information from applicant’s doctors and other sources.  The
administrator also notified applicant several times that he had provided
incomplete information on his application, and eventually closed the
application.  In September 2011, applicant sent updated disclosures and
successfully reopened his application.  The Committee received reports
that applicant had been denied admission to the New Hampshire and Maryland bars
on fitness grounds.  
¶
4.            
On February 22, 2012, the Committee sent applicant a letter denying his
application, based on (1) a doctor’s evaluation that concluded that applicant
was not fit to practice law, (2) a 2006 incident with the police in Albany, New
York, and (3) applicant’s testimony at a family court judge’s retention hearing
in 2009. 
¶
5.            
Applicant appealed the Committee’s decision, and this Court appointed
another commissioner to conduct a de novo evidentiary hearing.  The
commissioner requested additional disclosures of medical records, which
applicant refused to provide, although he did submit several letters from his
doctors in support of his application.  Following the hearing, the
commissioner issued a fifteen-page written report setting forth her findings
and conclusions, and ultimately recommending that applicant be denied admission
for failure to demonstrate the requisite fitness to practice law.  As more
fully described below, the commissioner’s ruling was grounded in its findings
that applicant had failed to follow previously recommended treatment plans, had
not fully cooperated in releasing his medical records, and most
significantly—indeed, the “overwhelming issue” in the commissioner’s view—had
demonstrated “continuing paranoia and obsession with the corruption” of the
Vermont family court, resulting in a demonstrated inability “in any forum, to
focus on the issue at hand,” “extremely disjointed and scattered” presentations
in court, and a clear incapacity “to make proper presentations of fact and law
on behalf of a client or to focus on the client’s needs in or out of
court.”  This appeal followed.
¶
6.            
Applicant advances facial challenges under the ADA and the U.S. and
Vermont Constitutions to the Committee’s inclusion of questions on the bar
application pertaining to the mental health history and status of bar
applicants.  In particular, applicant challenges questions 25 and 26 of
the Vermont bar application, which are taken from the NCBE questionnaire, and
inquire about an applicant’s mental health status and history.*
 These questions are meant to effectuate § 11(b)(2)
of the Vermont Rules of Admission to the Bar, which provides: “Fitness, as used
in these rules, is the assessment of health as it affects the competence of an
applicant.  The purpose of requiring an applicant to possess this fitness
is to exclude from the practice of law any person having such an illness or
condition which would prevent him or her carrying out duties to clients, courts
or the profession.” 
¶
7.            
In the proceedings below, neither the Committee nor the commissioner
evaluated applicant’s arguments regarding the propriety of the NCBE application
questions under the ADA and the U.S. and Vermont Constitutions, noting that
their task was to make factual findings and recommendations, not to analyze
legal claims.  We need not address these claims either, as we conclude
that the record amply supports the conclusion that applicant’s conduct, wholly
apart from his mental health history or status, demonstrates his lack of fitness. 

¶
8.            
As an initial matter, applicant contends that he was provided inadequate
notice of the reasons for denial by the Committee.  On the contrary, the
record discloses that the Committee provided applicant with specific notice of
the reasons for denial, including the particular documents in his file upon
which the Committee relied.  Moreover, the Committee provided ample
opportunity for applicant to update his application and to provide
documentation supporting his admission, as well as a hearing before a
commissioner so that applicant could present his view of the facts.  This
process was adequate to comply with procedural due process and constitutional
notice requirements.  In re
Monaghan, 126 Vt. 53, 56, 222 A.2d 665,
669 (1966).
¶
9.            
On the merits, applicant contends the evidence was insufficient to
support the commissioner’s findings and conclusions, which, he contends, were
motivated by discrimination against applicant due to his disability and his
political beliefs.  “The burden of proof of good moral character and
fitness is upon the applicant” for admission to the Vermont bar.  V.R.A.B. § 11(c).  The purpose of the fitness
requirement is to “exclude from the practice of law any person having an
illness or condition which would prevent his or her carrying out duties to
clients, courts or the profession.”  Id. § 11(b)(2). 
In our evaluation of applicant’s fitness, “although we are aided by the
Commissioner’s findings, we are not bound by them, and, ultimately, it is this
Court that must be convinced of the applicant’s good moral character and
fitness.”  In re Bitter, 2008 VT 132, ¶ 18, 185 Vt. 151, 969 A.2d
71 (quotation omitted).
¶
10.        
In this evaluation, we recognize the need for compassion and respect
towards those who suffer from mental health disabilities, the vast majority of
whom are able to effectively treat their symptoms and contribute productively
to society.  We do not take lightly the decision to deny an applicant for
unfitness.  Nevertheless, we hold that applicant is unable to meet his
burden of proof for admission.  The record evidence amply supports the
findings, which in turn support the conclusion that applicant’s conduct—not his
mental health history or status—demonstrates his unfitness to practice law. 
As outlined by the commissioner, these behaviors include: applicant’s
statements—made without supporting evidence—before the Vermont Judicial
Retention Committee, during oral arguments before the Maryland Court of
Appeals, and before the commissioner in this case regarding a Vermont
magistrate, whom he accused of lying and conspiring to prevent his admission to
the bar of New Hampshire; applicant’s continued claims that he is competent to
provide drug counseling to narcotics users without a license; and most
especially applicant’s disturbing conduct in various forums, including this
proceeding, which the commissioner was able to observe firsthand.  As
noted, the commissioner found that applicant’s obsession with the perceived
“corruption” of the family court is “pervasive” and prevented applicant from
focusing on the issues in this matter and other proceedings.  The
commissioner found, with reason, that applicant’s demonstrated inability to
focus and to “filter his presentations” in a variety of legal forums would
render his representation of clients other than himself highly problematic, and
demonstrated an inability to “make proper presentations of fact and law on
behalf of a client or to focus on the client’s needs in or out of court.” 
The commissioner also observed, again with reason, that if applicant believed
he could provide drug counseling services without training or a license, his
judgment in representing clients in areas outside his area of expertise and
competence was highly questionable, potentially “putting his clients at
financial and emotional risk.”  
¶
11.        
We thus find ample “competent and material evidence” to support the
denial of applicant’s admission.  Bitter, 2008 VT
132, ¶ 18.  Applicant’s conduct indicates a present inability to “carry[] out duties to clients, courts or the profession.”
 V.R.A.B. § 11(b)(2).  Accordingly, we
adopt the commissioner’s recommendation, and conclude that applicant has not
demonstrated the requisite fitness to practice law.  
The application
of John Hirsch for admission to the bar of the State of Vermont is denied.
 

 


 


FOR THE
  COURT:


 


 


 


 


 


Chief Justice

 







* 
These questions provide: 
 
25.
Within the past five years, have you been diagnosed with or have you been
treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic
disorder?
 
26.
A. Do you currently have any condition or impairment (including, but not
limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous
disorder or condition) which in any way currently affects, or if untreated
could affect, your ability to practice law in a competent and professional
manner?
 
B. If your answer
to Question 26(A) is yes, are the limitations caused by your mental health
condition or substance abuse problem reduced or ameliorated because you receive
ongoing treatment (with or without medication) or because you participate in a
monitoring program?
 
 



