Britton v. Board of Bar Examiners ( 2015 )

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SJC-11703
RANDY A. BRITTON vs. BOARD OF BAR EXAMINERS.
April 30, 2015.
Board of Bar Examiners. Attorney at Law, Admission to practice.
On May 12, 2006, Randy A. Britton applied for admission to
the Massachusetts bar, and he took and passed the written bar
examination in July of that year. Based on information in his
application, including his responses to questions concerning his
employment history and involvement in litigation, and the
pendency of his application for admission to the Connecticut
bar, the Board of Bar Examiners (board) interviewed Britton and
then stayed further investigation pending a final determination
on the Connecticut application. After Britton withdrew that
application, the board resumed its investigation, appointed
special counsel to assist in the investigation, and thereafter
conducted a hearing to inquire whether Britton "is of good moral
character and sufficient acquirements and qualifications" to
warrant his admission to the bar. G. L. c. 221, § 37. See
S.J.C. Rule 3:01, § 5.1, as appearing in 411 Mass. 1321 (1992).
Britton was the sole witness at the hearing. The board
determined that he was not qualified for admission and
recommended that the petition be dismissed. S.J.C. Rule 3:01,
§ 5.3, as appearing in 411 Mass. 1321 (1992). Britton
petitioned the county court for a hearing on his application,
raising a variety of constitutional, statutory, and other
challenges to the board's decision. After a hearing, a single
justice issued a very thorough memorandum in which he carefully
addressed and rejected each of Britton's challenges. The single
justice thus denied Britton's application and dismissed his
petition. We affirm for essentially the same reasons stated by
the single justice.
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1. Facts. In his application, Britton disclosed that he
had been "wrongfully terminated" by two employers, and that he
had brought multiple lawsuits involving separate incidents
against former employers, attorneys, police officers, and a
media outlet alleging, among other things, wrongful termination,
violation of civil rights, defamation, breach of contract,
malicious prosecution, and abuse of process. In addition, he
reported that his application for admission to the Connecticut
bar had been pending since 2004. The board's investigation
revealed additional involvement with the legal system and other
matters, which he had failed to disclose in his application.
a. Failures to disclose. In support of his application,
Britton submitted three letters of recommendation. One of those
letters was from an attorney who had obtained a criminal
complaint against Britton and whom Britton had sued. After
investigation, the board determined that the criminal complaint
was dismissed with an order that Britton pay restitution, and
that the civil matter was settled under terms requiring the
attorney to provide a positive letter of recommendation. In his
application, Britton stated that the attorney had written the
letter "[i]n an effort to minimize the damage he has done." The
board found that Britton attempted to mislead it as to the
nature of the recommendation.
In addition, the board's investigation revealed that
Britton twice had been charged criminally. Although neither
charge resulted in a conviction, Britton failed accurately to
disclose his criminal history as the bar application required.
Likewise, the board found that Britton failed to disclose a
civil complaint he had filed that unsuccessfully challenged the
denial of his request for a firearms identification card and a
license to possess an assault weapon. Finally, the board
determined that Britton violated his "continuing duty" to
disclose relevant information by failing to report that he had
filed a petition for redetermination of a tax deficiency with
the United States Tax Court. See Rule V.1.2 of the Rules of the
Board of Bar Examiners (2010).
b. Litigation history. The board found that Britton has a
substantial history of initiating pro se legal actions, the
majority of which have been unsuccessful, and some of which have
resulted in sanctions or an order to pay restitution. Among
other things, in 2007, Britton removed an action brought against
him and his spouse by a condominium association in the Concord
Division of the District Court Department to the Federal
District Court in Boston, where it was promptly remanded with
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the observation that "attorney's fees and costs are appropriate
because the Brittons lacked anything remotely like an
objectively reasonable basis for removal." On remand, the judge
dismissed Britton's counterclaims, which included claims of
Federal mail fraud, attempted extortion, G. L. c. 93A
violations, and other claims, and awarded attorney's fees and
costs to the plaintiff.
In 2005, Britton brought an action against the city of
Lawrence and its police officers for false arrest, civil rights
violations, malicious prosecution, and other crimes, arising out
of criminal proceedings against him that eventually were
dismissed. The civil case was dismissed, in part because of
Britton's "history of disregard of his discovery obligations,
and . . . for his disobedience of the [c]ourt's . . . order."
After multiple requests for extensions of time, his appeal also
was dismissed.
In 1993, Britton commenced an action in the United States
District Court for the Southern District of New York seeking
damages in excess of $50 million against a former employer and
others, claiming that he had been wrongfully terminated, and for
breach of a settlement agreement. He subsequently commenced a
second action arising out of the same facts, adding additional
parties. After the actions were consolidated, and the second
action was stayed, Britton nonetheless continued to issue
subpoenas in the second case, resulting in an order not to issue
subpoenas or document requests without leave of court. The
first action was resolved adversely to Britton, and the second
action was dismissed. His appeals were unsuccessful. Britton
disclosed only the first action in his application.
c. Unauthorized practice of law. In October, 2007, a
reviewing committee of the Connecticut Statewide Grievance
Committee found that Britton had engaged in the unauthorized
practice of law in Connecticut.
2. Discussion. We accord deference to the board's
recommendation, but it is ultimately this court's responsibility
to determine an applicant's fitness to practice law in the
Commonwealth. See Matter of Prager, 422 Mass. 86, 91 (1996),
citing G. L. c. 221, § 37. That determination requires
consideration of the public interest, Matter of Prager, supra,
and "[a]ny significant doubts about an applicant's character
should be resolved in favor of protecting the public by denying
admission to the applicant." Matter of an Application for
Admission to the Bar of the Commonwealth, 444 Mass. 393, 397
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(2005), quoting Matter of Prager, supra at 100. We have said
that "[c]andor with the board is essential. 'It is the
obligation of an applicant to assure the members of the board
and, ultimately, this court that he or she possesses the
necessary qualification to practice law in the Commonwealth.
Such a showing requires a full and exhaustive disclosure of
prior wrongdoing, including all relevant circumstances
surrounding the conduct, both militating and mitigating, and
official documentation where appropriate.'" Strigler v. Board
of Bar Examiners, 448 Mass. 1027, 1029 (2007), quoting Matter of
Prager, supra.
Britton's conduct in filing multiple lawsuits that have
resulted in sanctions or orders to pay costs and fees and in
repeatedly failing to comply with court orders demonstrates lack
of respect for the judicial process. See Desy v. Board of Bar
Examiners, 452 Mass. 1012, 1014 (2008); Matter of an Application
for Admission to the Bar of the Commonwealth, supra at 398.
Likewise, Britton's failure to disclose relevant and material
information, both in his application and during the board's
investigation, shows a marked lack of candor. See Strigler v.
Board of Bar Examiners, supra, citing Matter of Eisenhauer, 426
Mass. 448, 456, cert. denied, 524 U.S. 919 (1998) (failure to
fully answer "is a powerful indication that the applicant lacks
the good character required for admission to the bar"). See
also Rule V.1 of the Rules of the Board of Bar Examiners, supra
("There shall be a rebuttable presumption that nondisclosure of
a material fact on the candidate's application[s] to the bar,
law school or undergraduate school is prima facie evidence of
the lack of good character"). Britton's conduct in Connecticut
is consistent with the conclusion that he lacks the necessary
character and fitness for admission to practice here.
There is no merit to Britton's claims that the board's
proceedings were defective or unlawful. Although he claims that
the board "illegally" circumvented sealed record and criminal
offender record information statutes in the course of its
investigation, the single justice properly concluded that the
statues neither prohibit the type of investigation conducted by
the board nor forbade the board from inquiring into his criminal
history. See Corliss v. Board of Bar Examiners, 437 Mass. 1023,
1024 (2002) ("We would expect the board to inquire into the
background of applicants who present a criminal history . . .
[and], on discovering inconsistent statements and
misrepresentations in an application, to conduct a more thorough
investigation . . ."). Moreover, there is nothing to suggest
that the board considered Britton's history to be evidence of
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misconduct: rather, it was his failure to disclose that
history, and the explanation he gave for omitting the
information, that demonstrated a lack of candor. Whether a bar
applicant is of good moral character and fitness "is a most
serious issue," and "[q]uestions exploring this issue are not to
be answered by gamesmanship." Matter of Moore, 442 Mass. 285,
295 (2004). Finally, the record amply supports the single
justice's observation that Britton's criminal history was
obtained by the board through his own disclosures, including
disclosures in Connecticut, and publicly available court
filings. See Police Comm'r of Boston v. Municipal Court of the
Dorchester Dist., 374 Mass. 640, 653 (1978) (information that is
publicly accessible not protected criminal offender record
information).
We also reject Britton's claim that the board failed to
provide him with adequate constitutional safeguards in the
investigation and hearing process. Britton was given ample
notice of the board's formal hearing, and was provided in
advance of the hearing with the character and fitness report
prepared by the board's special counsel. He had a "full and
fair opportunity to present evidence in support of his case and
to call witnesses, including those identified in the special
counsel's report." Desy, 452 Mass. at 1014. No more is
required. While the proceedings were lengthy, there is nothing
to suggest that either the process itself or the duration of the
proceedings amounted to a due process violation. Indeed, as the
single justice concluded, "[t]he time (and expense) needed to
discover that which [Britton] should have disclosed is
attributable entirely to [Britton], not to the board."
On the record before us, therefore, we are "left with grave
doubt about [Britton's] present character and fitness to
practice law. We resolve that doubt 'in favor of protecting the
public by denying admission.'" Desy, supra. Britton has not
met his burden of demonstrating that he presently "possesses the
necessary qualification to practice law in the Commonwealth."
Matter of Prager, 422 Mass. at 100. See Matter of an
Application for Admission to the Bar of the Commonwealth, 444
Mass. at 398, quoting Matter of Prager, supra (applicant has
burden "of demonstrating that his admission to the bar would not
be 'detrimental to the integrity of the bar, the administration
of justice, or the public interest'"). As the board found,
"Britton's disregard for the rules and standards by which the
legal system operates and for which the legal process is
structured, show his unwillingness to conduct himself with
respect for the law and his inability to use sound judgment in
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conducting professional business." This, coupled with his
demonstrated lack of candor, amply supports the board's
recommendation that the application be denied.
3. Conclusion. The decision of the single justice denying
Britton's application for admission to the bar, and dismissing
his petition, is affirmed.
So ordered.
Randy A. Britton, pro se.
Sara Gutierrez Dunn (Robert G. Jones with her) for Board of
Bar Examiners.