Monday, January 27, 2014

California Supreme Court denies admission to Stephen Glass (based on evidence of past dishonesty as a journalist and lack of support for argument on rehabilitation)

Since the end of 2011 I have been following the case of Stephen Glass, once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital" who was later exposed as a fraud who completely fabricated many of his articles, including some while he was a law student.  Glass graduated and passed the bar exams in New York and California, but he withdrew his application in New York after learning his admission would likely be denied.  His application in California was denied by the Committee of Bar Examiners (CBE) but the decision was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court just issued its opinion.  My first post on the case is available here.  Since then, I updated the story with more information and links here, here, and here.  You can read the briefs filed before the California Supreme Court here, and watch the oral argument here.

The case generated a very interesting debate (and the links above will bring you to articles that argue for and against admission).  As I understand it, the nature of the debate has two elements:  the question of whether the conduct supports the denial of admission to the profession and the question of whether regardless of the original conduct, whether the candidate's conduct since the original conduct shows he has "changed."  Or, in other words, whether his evidence of "rehabilitation" shows he can be trusted to be a lawyer.

As to the first question, the Court is very clear.  The opinion is available here. The first sentences of the Court's opinion give you a good hint: "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic‟s fact checkers."

Evidently, the Court's emphasis is on the calculated dishonesty involved in the original conduct, which, as the court emphasizes, "violated ethical strictures governing his profession."  (It seems to me this comment essentially says that if Glass could not be trusted to abide by the ethical rules of his profession, there is no reason to believe he should be trusted to abide by those of the legal profession.)  The Court also emphasized the fact that the "misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him."

The Court describes the conduct in great detail and eventually gets to its conclusion stating that "[h]onesty is absolutely fundamental in the practice of law; without it ...the profession is worse than valueless in the place it holds in the administration of justice....“[M]anifest dishonesty . . . provide[s] a reasonable basis for the conclusion that the applicant or attorney cannot be relied upon to fulfill the moral obligations incumbent upon members of the legal profession.”

This last sentence summarizes the basis for the Court's first conclusion: that evidence of past misconduct can be used to predict future conduct.  If the candidate has been dishonest to this extent in the past, it is reasonable to expect that he probably will continue to be dishonest in the future.

This brings us to the second question: whether there is enough evidence of rehabilitation to conclude that this expectation is wrong.  Glass, obviously argued the evidence was in his favor, but the Court disagreed.  The Court dismisses Glass' arguments that he should be considered to be rehabilitated enough to show he is worthy of the public's trust.  The court wrote about instances of dishonesty and disingenuousness occurring after Glass's exposure and described his testimony as hypocritical.

To decide the case, the Court looked to cases discussing the standards that apply to lawyers seeking reinstatement, concluding there is no difference in the underlying principles between those cases and the issue in this case.  According to the Court's analysis, because the State Bar presented evidence of moral turpitude, Glass had the burden to demonstrate his rehabilitation and good moral character, which is usually done by showing a "substantial period of exemplary conduct following the applicant's misdeeds.” This, the Court concluded, he did not do, stating that "much of Glass's energy since the end of his journalistic career seems to have been directed at advancing his own career and financial and emotional well-being."

Thanks to the Legal Ethics Forum for the link to the opinion.

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