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Connecticut’s judges have abdicated their role of overseeing who can become a lawyer, improperly delegating the job to the state Bar Examining Committee, according to state appeals court Judge Thomas Bishop. In his June 24 dissent in Friedman v. Connecticut Bar Examining Committee, Bishop concluded that some bar candidates may have been excluded from the profession because they did not receive basic constitutional due process. If it were up to Bishop alone, Quinnipiac University School of Law graduate David A. Friedman would be granted a bar license forthwith — or at least given a new hearing limited to the accuracy of his answers to application questions. Friedman, however, failed to convince appeals court Judge William J. Lavery and trial referee Judge George D. Stoughton, sitting by designation, to reverse the bar examiners’ finding of unfitness against him. The BEC’s decision was initially confirmed by New Haven Superior Court Judge Jon C. Blue. Nearly begging the case to be appealed to the state Supreme Court, Bishop contended that Friedman’s review hearing lacked fair notice of the charge against him and relied on unsworn testimony and hearsay. Furthermore, Friedman did not get a chance to confront or cross-examine key witnesses against him, Bishop maintained. Bishop wrote that Blue was right to defer to the bar examining committee on fact-finding matters, but that he didn’t adequately scrutinize the constitutional fairness of the hearing process. After the appeals court panel upheld the trial decision 2 to 1, Bishop’s dissent declared, “I believe we have completely ceded to the [bar examining] committee the uniquely judicial function of determining whether the petitioner should be admitted to practice.” LIBERTY INTEREST He conceded that a bar candidate does not have a property interest or constitutional right to a law license, or a property right in the expectation. But a candidate does, Bishop asserted, “have a liberty interest in realizing his reasonable expectations.” In Friedman’s case, that interest, he wrote, was denied by the Bar Examining Committee’s investigation, without constitutionally required due process protections. The character controversy centers on a constitutional law exam that Friedman took in his first year, on May 5, 1995. Sixteen months later, it became the subject of Quinnipiac student disciplinary hearings held on three days in August and September of 1996. Fellow student Lynn Fiore testified she heard another student ask Friedman, “What are you so nervous about? Everybody does it; no one admits it,” or words to that effect. Before the exam started, students were busily studying outlines. Fiore claimed she overheard Friedman ask another student, Matthew Goldzweig, what he was leaving on his desk for the closed-book exam. Goldzweig said he was clearing his desk. Fiore testified in the student hearings that Friedman then placed a folded sheet of paper under a blank sheet, and that, several minutes after the exam began, she saw him reading from a handwritten sheet. Although she did not read it, Fiore claimed it had more writing on it than she could have written in the elapsed exam time. Neither Fiore nor Goldzweig said they could read Friedman’s outline. Friedman insisted he didn’t cheat, and maintained that Goldzweig had never liked him. But the student discipline committee concluded, “there is strong, positive proof” that Friedman brought an outline or other document to the exam. While it had no evidence of the document’s content — and could not conclude it was any benefit to Friedman — it decided he violated the student conduct code. On Jan. 24, 1997, then-Quinnipiac Dean Neil H. Cogan reversed the students’ decision on grounds that the time-lapse between the incident and the hearing may have prejudiced Friedman’s right to a fair hearing. He received no punishment, and a one-grade demotion for the class was undone. Three years later, Friedman graduated and passed the state bar exam. A Fairfield County committee approved him on character and fitness grounds. But in January 1999, the statewide Bar Examining Committee told him to report in three days. The hearing notice said he would be questioned about the proceedings following the Quinnipiac exam and his level of candor in his bar application. When asked if he’d been disciplined in school, Friedman said he had. He explained, “I was charged once with using or attempting to use unauthorized material during one of my first-year exams. However, I was not convicted. In addition, absolutely no disciplinary sanctions were imposed.” The 1999 hearing turned into a reexamination of the 1995 incident, and Fiore testified again. The committee concluded that Friedman had committed an act of dishonesty and denied him a bar license. INTIMIDATING PROCESS In his dissent, Bishop noted that Friedman hadn’t objected properly to hearsay and unsworn testimony at his hearing, but surmised that a reasonable applicant might be hesitant to confront the examining committee, which serves as “investigator, inquirer, fact finder and, apparently, adjudicator.” For that reason, Bishop said it would be proper for a court to raise unpreserved constitutional due process issues on its own. The appeals court majority relied on the 1906 state Supreme Court decision of O’Brien’s Petition, in which a lawyer asked for a chance to present evidence of his good character. The high court ruled it could not do so because the Fairfield County bar had declined to give O’Brien a favorable recommendation. Bishop, however, cited language in that case as implicitly recognizing that courts, not bar groups, are the ultimate authority for granting admission to practice. Before the 20th Century, the state legislature had the primary role in licensing lawyers, with input from county bars. Two major changes have undermined O’Brien’s Petition in the past 97 years, Bishop noted. First, U.S. Supreme Court cases over the last quarter century have held that, when significant rights are at stake, a fair hearing is constitutionally required. The second change is demographic. In 1907, Bishop pointed out, there were 200 members of the state bar association, while today there are over 11,000. Raymond W. Beckwith, who heads the Bar Examining Committee, said its procedures are designed both to be fair and to uphold public confidence in the legal profession. Friedman’s lawyer, Kenneth A. Votre, of New Haven’s Hurwitz, Cooper, Silverman & Votre, said he will be seeking certification to the state Supreme Court on his client’s behalf. “Lawyers should be held to a high standard” in attaining a position in the profession, Votre said. But while doing so, he added, “They deserve to be able to defend themselves with due process.”

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