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F. Lee Bailey’s Bid to Join Maine Bar Doomed by ‘Failure to Be Fully Repentant’

Thursday, April 24, 2014

April 16 --Celebrity attorney F. Lee Bailey, who was disbarred in Florida and Massachusetts more than a decade ago, will not be allowed to relaunch his career in Maine because he “continue[s] to challenge the legitimacy of the judicial process that resulted in his disbarment,” the Maine Supreme Judicial Court held April 10.  

The 4-2 ruling vacates a June 2013 order by a single justice who concluded that Bailey has proved his character and fitness to practice.

Writing for the majority, Justice Jon D. Levy said Bailey's insufficiently contrite views about his transgressions were fatal to his admission. A disbarred lawyer's ability to “recogniz[e] the wrongfulness and seriousness” of past misconduct is a key factor in assessing moral fitness under Maine Bar Rule 7.3(j)(5), he said.

“Neither the language of the rule nor its purpose requires that an applicant demonstrate his complete and unambiguous acceptance of all of the findings of wrongdoing in order to establish his good character and fitness,” Levy acknowledged. “Common sense dictates, however, that the nature and extent of his failure to be fully repentant should be carefully considered when determining his fitness to practice law.”


“An applicant's attempt to minimize the wrongfulness and seriousness of his or her misconduct … casts doubt on whether the applicant believes the misconduct was wrong or serious.”
Justice Jon D. Levy

Chief Justice Leigh I. Saufley, in a dissent joined by Justice Robert W. Clifford, said the court “acted outside its appellate function in vacating the factual findings of a single justice who heard the evidence in this matter.”

Road Toward Redemption

The ruling is the latest illustration of the seesawing fortunes Bailey has encountered in his bid to revive a storied career. That career came to an ignominious end in 2001, when Bailey was disbarred in Florida for ethics violations he committed while representing an alleged drug smuggler. Fla. Bar v. Bailey, 803 So. 2d 683, 17 Law. Man. Prof. Conduct 720 (Fla. 2001).

He was then disbarred in Massachusetts as reciprocal discipline. In re Bailey, 786 N.E.2d 337, 19 Law. Man. Prof. Conduct 239 (Mass. 2003).

Bailey subsequently moved to Maine where, at age 78, he passed the bar exam in 2012. The Maine Board of Bar Examiners voted 5-4 to deny his application on the grounds that he failed to establish the requisite moral fitness, but a single justice reversed that decision in June 2013. See 29 Law. Man. Prof. Conduct 362.

How Sorry?

The board raised several objections to the single justice's ruling, but the full court focused on one principal assertion: Bailey failed to prove by clear and convincing evidence that he “recognizes the wrongfulness and seriousness of the misconduct” that led in his disbarment--one of six factors in assessing moral fitness for admission to the bar under Rule 7.3(j)(5).

“[A]n applicant is not required to demonstrate that he or she completely and unambiguously accepts all of the findings of misconduct to satisfy the requirement,” Levy acknowledged.

“Other courts have recognized that an applicant's failure to be fully repentant does not preclude a determination that the applicant has been rehabilitated,” he added in rejecting that expansive interpretation. E.g., In re Sabo, 49 A.3d 1219, 28 Law. Man. Prof. Conduct 541 (D.C. Cir. 2012) (“a confession of guilt is not required for a petitioner seeking reinstatement to show that he recognizes the seriousness of his misconduct”).

However, Levy said, “An applicant's attempt to minimize the wrongfulness and seriousness of his or her misconduct, as found by the presiding tribunal, casts doubt on whether the applicant believes the misconduct was wrong or serious.”

That was the case here, the majority found. “By continuing to question many of the findings and conclusions reached by the Florida Supreme Court, and by suggesting that [the judges] who presided in his cases were biased and that the Florida proceedings were the product of a conspiracy to deprive him of his constitutional rights, Bailey minimizes the wrongfulness and seriousness of the misconduct for which he was disbarred,” Levy wrote.

Overreach

Saufley said the majority failed to apply the “standards applicable to its appellate review,” and instead made “credibility determinations of its own and [chose] to give weight to different evidence than was credited by the single justice.”

The dissenters said they would remand the case with instructions that the single justice take more evidence and “reconsider whether the risk that Bailey would mismanage funds in the context of paying his substantial tax debt would render his admission to the Bar 'detrimental … to the public interest'” under Rule 7.3(j)(5).

Assistant Attorney General Thomas A. Knowlton, Augusta, Me., represented the board. Norman, Hanson & DeTroy LLC, Portland, Me., represented Bailey.


Full text at http://www.bloomberglaw.com/public/document/Bailey_v_Bd_of_Bar_Examrs_2014_ME_58_Court_Opinion.

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