Character and fitness after admission to the bar

Issue November/December 2017 By Richard P. Campbell

How many times have we sat across the table from an obnoxious boor, someone who is unrefined, ill-mannered, uncouth and belligerent in all that he does? We ask ourselves questions. Where did this neanderthal come from? Did his parents fail to teach him the basics of civil intercourse? Or the opposite, did he learn to be like this from his parents? With infinite wisdom (in my judgment), Robert Fulghum informed us that we learned the basic tenets of a life properly lived in kindergarten:

“Most of what I really need to know about how to live and what to do and how to be I learned in kindergarten. Wisdom was not at the top of the graduate-school mountain, but there in the sandpile at Sunday School. These are the things I learned: Share everything. Play fair. Don't hit people. Put things back where you found them. Clean up your own mess. Don't take things that aren't yours. Say you're sorry when you hurt somebody. Wash your hands before you eat. Flush. Warm cookies and cold milk are good for you. Live a balanced life-learn some and think some and draw and paint and sing and dance and play and work every day some. Take a nap every afternoon. When you go out into the world, watch out for traffic, hold hands, and stick together. Be aware of wonder.” Robert Fulghum, All I Really Need To Know I Learned In Kindergarten (Ballantine 2004).

Sadly, some lawyers do not live balanced lives. Some do not play fair. Some, dominated by greed and materialism, take things that do not belong to them. Some hurt others knowingly, callously indifferent to the suffering they cause. With more than 55,000 individuals holding licenses to practice law, it is axiomatic that at least a few lawyers fit this bill. The question at hand, therefore, is whether lying, cheating, obnoxious lawyers are at risk of losing their license to practice law even where their bad behavior takes place outside of courtrooms (or the context of litigation) or interactions with clients as retained counsel. What are the limits of the court’s oversight of a lawyer’s character and fitness to practice law?

It is open and obvious that applicants for admission to practice law are subject to an evaluation of their fitness and character. Rule V (Character and Fitness Standards for Admission) mandates that the Board of Bar Examiners report to the court “as to the character, acquirements and qualifications of each candidate for admission who has passed the written bar examination. …” In carrying out its mission, the board “considers good character to embody that degree of honesty, integrity and discretion that the public and members of the bar have a right to demand of a lawyer.”

A record manifesting a significant deficiency in the honesty, trustworthiness, diligence or reliability of a candidate may constitute a basis for denial of a recommendation for admission. Engaging in any conduct which would have subjected the candidate to discipline if he/she had already been a member of the bar will weigh strongly against a determination of good character and fitness.

Among several “essential” attributes of good character and fitness to practice law, the court cites to the ability to conduct oneself with respect for and in accordance with the law, to avoid acts which exhibit disregard for the rights or welfare of others, and to use honesty in financial dealings on behalf of oneself, clients and others. Play fair; don’t hurt others; don’t take things that are not yours. Sounds familiar.

Now fast-forward to years after admission to the bar; will the court evaluate a licensed lawyer’s character and fitness as embodying that degree of honesty, integrity and discretion that the public and members of the bar have a right to demand of a lawyer? Will it consider lawyer conduct manifesting a significant deficiency in honesty, trustworthiness, diligence or reliability as grounds for suspension or disbarment? Will the court look at conduct unconnected to lawyering?

The bar disciplinary opinions In Re Evan A. Greene (BD -2014-107) and In Re Barry D. Greene (BD – 2015 – 106) demonstrate the answer is unequivocally affirmative. The opinions also show that bad behavior is often learned at home from the family.

Barry Greene (the father) and Evan Greene (the son) were lawyers admitted to practice in the commonwealth and operated a law firm known as Portnoy & Greene in Needham. They held themselves out to be specialists in real estate transactions (and, apparently, in bankruptcy, litigation and estate planning). In addition to practicing law for clients, the Greenes ran a business that involved the purchase and leaseback of distressed residential real estate properties (all of which had untapped, available equity) from unsophisticated consumers who were unable to meet their ongoing mortgage debts. The insolvent homeowners were not clients; the Greenes did not represent them. (“Bar Counsel’s petition for discipline was not based on any assertion that the individuals received legal advice from the respondent.”) As the court reported in its decision, “[t]he firm was not involved in an attorney-client relationship with any of the homeowners involved.” Instead, in exchange for a “substantial” fee, mortgage brokers with knowledge of the homeowners financial distress “referred” the homeowners to the Greenes for what might be described as workouts as they tried to remain in their homes. The Greenes “arranged to purchase the homes” and then lease them back to the homeowners with an option to repurchase the home within a year in an amount equal to the purchase money mortgage plus closing costs. During the lease period, the rents were calculated on the carrying costs of the Greenes’ purchase money mortgage (which they borrowed from one of their banking clients) and totaled more than the monthly payments on the homeowners’ underlying mortgage (which the homeowners demonstrably could not meet in the first place). (“The transactions were oppressive because the homeowners were desperate to avoid imminent foreclosure and [the Greenes] took advantage of [their] superior bargaining position.”) In other words, the Greenes constructed a financial scheme that doomed the homeowners to failure from the outset and assured the Greenes access to (and conversion of) the homeowners’ equity in the distressed property. (“The lease/buy-back options were high-risk and likely to fail because the homeowners’ lease payments were higher than the mortgage payments they demonstrated they could not afford.”) All of the homeowners defaulted on their lease-option monthly payments. What was theirs became the Greenes.

The court, clearly motivated by the “selfish” actions of lawyers using superior knowledge and bargaining positions over “desperate and vulnerable” victims, indefinitely suspended the son and suspended the father for two years from the practice of law. As Justice Spina wrote in In Re Evan A. Greene, Evan A. Greene’s conduct was “beyond distasteful.” “Sadly the respondent’s use of his professional skills was motivated by greed” in that he “used his professional training and experience to devise a sophisticated plan that took advantage of unsophisticated homeowners in financial distress. …” The court upheld the finding (among others) that Evan A. Greene violated Rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rule 8.4 (h) (conduct that adversely reflects on fitness to practice law). Justice Duffly wrote in In Re Barry D. Greene that the respondent “who had an extensive practice in real estate law, and lengthy experience in the field, did not explain to the vulnerable …the terms of the documents they were signing, or the term of the buyback option, did not allow the[m] time to read the documents, and, in one case, the [homeowner] left the closing not aware that she sold her house.” The court ruled that, among other rules of professional conduct, Barry D. Greene (like his son Evan) violated Rule 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

Lawyers may, of course, engage in business transactions outside the traditional practice of law just as Barry Greene and his son Evan did. Personal liability for unfair and deceptive practices pursued by such lawyers in those extra-judicial businesses will be governed by the tenets of G.L.c. 93A, §§ 9 and 11 where the Courts insist that “[t]he objectionable conduct … attain a level of rascality that … raise[s] an eyebrow of someone inured to the rough and tumble of the world of commerce.” Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979). Lawyers may not reasonably expect, however, that they can engage in unfair and deceptive business practices and maintain the privilege of practicing law.

“It doesn’t matter what you say you believe - it only matters what you do.” – Robert Fulghum, All I Really Need to Know I Learned in Kindergarten.    

Richard P. Campbell is a fellow of the American College of Trial Lawyers and a past president of the Massachusetts Bar Association. He founded Campbell Campbell Edwards & Conroy, P.C., a firm with a national practice, in 1983. 

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