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A Quinnipiac University law school graduate’s ongoing efforts to become a lawyer reached Connecticut’s highest court May 17. The arguments came down to whether David A. Friedman’s due process rights were violated by the Connecticut Bar Examining Committee when it denied his admittance because he allegedly cheated on a closed-book exam. Much of the justices’ questioning focused on Friedman’s representation before the CBEC. Members of the high court panel seemed hesitant to allow parties the ability to appeal just because their initial trial strategy didn’t work out. In this case, Friedman’s counsel before the bar examining committee didn’t insist at the time that the CBEC subpoena a witness and, instead, let it rely on transcripts from Quinnipiac law school student disciplinary hearings. The controversy centers on a constitutional law exam Friedman took in his first year, on May 5, 1995. Sixteen months later, it became the subject of student disciplinary hearings held over three days in August and September of 1996. In January 2000, the CBEC denied Friedman, a 1998 Quinnipiac grad, admission to the bar because it determined he had cheated on the exam. New Haven Superior Court Judge Jon C. Blue ruled in November 2000 that the case be remanded to the CBEC because its factual findings were insufficient. His admittance was denied again. Friedman appealed and Blue denied it in April 2002. The state Appellate Court affirmed Blue’s decision, by a 2-1 vote. But in a scathing dissent, Appellate Court Judge Thomas A. Bishop all but begged Friedman to seek a further appeal. Bishop contended that Friedman’s CBEC 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 cited language in 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 as implicitly recognizing that the courts, not bar groups, are the ultimate authority for granting admission to practice. At oral arguments, Friedman’s attorney, Kenneth A. Votre of Votre & Rini in New Haven, told the Supreme Court that his client didn’t get the chance to face his accusers. Justice Richard N. Palmer asked if Friedman had been denied his right to cross-examine a witness. Votre said he hadn’t, but the witness was not testifying under oath. “There was no test of reliability for the witness,” Votre said. “There was no legal obligation to tell the truth.” Due process was absent, he added, because the CBEC initiated a proceeding without calling all the witnesses from the Quinnipiac disciplinary hearing. Votre said the process was set up to prevent Friedman from getting due process. In his remarks, the bar examining committee’s attorney, John B. Farley of Halloran & Sage’s Hartford office, said it wasn’t a question of whether the cross-examination occurred. Rather, it was if Friedman had the opportunity to cross-examine a witness, which Farley said he did. Farley also refuted Votre’s claim that a witness wasn’t called to testify. He said Friedman’s counsel tried to prevent live testimony from one of Friedman’s law school accusers. Farley told the justices that Friedman was not intimidated by the CBEC. After the presentation, Farley said, “Our initial position is that the issues are unpreserved and so the court should not review them because [doing so] would allow parties in the position to sit silent to see how the case comes out and then decide which issues to raise.” Both Palmer and Justice David M. Borden questioned Votre on the motives of Friedman’s counsel before the CBEC. “All kinds of considerations go through an attorney’s mind,” Borden remarked. “If you want to object to [something] on appeal, object to it at the trial.” Palmer added, “A timely objection on grounds of fairness might have prevailed … the committee might have thought it advantageous to hear live testimony.” Votre also argued that an applicant before the CBEC couldn’t take on an adversarial role, as would be the case in a normal legal proceeding. He said the committee’s combined investigative and adjudicative powers need to be separated. If they’re still combined, he said, applicants should have the opportunity to question evidence that might be unreliable or hearsay. Votre described bar applicants as trapped. They want to cooperate and be candid, while at the same time not let down their guard, he said.

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