DocketNumber: S18Z0388.
Citation Numbers: 818 S.E.2d 585, 304 Ga. 380
Filed Date: 8/27/2018
Status: Precedential
Modified Date: 7/29/2022
**380John Anthony Montesanti appeals the decision of the Board to Determine Fitness of Bar Applicants ("Board") to deny his application for a certificate of fitness to practice law. For the reasons set forth below, we affirm the Board's decision.
The record shows that Montesanti graduated from Florida Coastal School of Law in 2015 at the age of 67. He commenced his fitness application for the Florida Bar while enrolled in school, and after a two and one-half year investigation process requiring several amendments to the application, and after *587specifications were issued as to why his application should be denied, Montesanti withdrew his application to the Florida Bar before the date of a scheduled hearing and before a final determination on his application. Montesanti then applied to the Georgia Bar for a certificate of fitness. After several amendments were made to his Georgia application in response to inquiries by the Board, an informal hearing was held. The Board issued a tentative denial, and issued specifications giving the applicant notice of the basis for the tentative decision. Montesanti submitted written responses to the specifications and requested a formal hearing. A hearing was held on August 16, 2017. Both the Board and Montesanti were represented by counsel and both presented evidence. The hearing officer issued proposed findings of fact and conclusions of law, and recommended denial of the application. The applicant filed written objections to the hearing officer's recommendation. The Board issued a final denial of certification dated October 5, 2017, after which Montesanti filed this appeal.
1. Montesanti asserts the written specifications prepared by the Board's counsel contained errors and false statements that prejudiced the Board against him. Even if the specifications contained errors, however, the record reflects Montesanti was afforded ample opportunity to respond to the specifications not only in writing but also by presenting evidence at the hearing, including his own **381testimony, and the argument of his counsel. He was afforded the opportunity to cross-examine a witness whose adverse testimony was presented by the Board's counsel via telephone. While the hearing officer's findings of facts and recommendations are not binding upon the Board or this Court, if there is any evidence to support the Board's decision, this Court will uphold it. See In re Baska ,
As noted in the hearing officer's findings, Montesanti demonstrated a pattern of failing to disclose relevant information to the Board and providing inconsistent statements to both the Board and the Florida Bar. For example, Montesanti provided different explanations to the Board for his non-payment of a judgment against him in a small claims court case-at one stage saying he forgot to pay and at another point acknowledging he intentionally did not pay the judgment because he disagreed with it, though he now understands he was wrong in refusing to pay. The record showed he provided two different reasons in letters to the Florida Bar for withdrawing his application for fitness in that state-in one letter stating that he had to withdraw for financial reasons and in another letter stating he had to withdraw due to an "undetermined illness." The record shows that at the informal conference with the Board, Montesanti stated he did not recall writing the second letter, didn't know what he meant by "undetermined illness," and assured the Board he was healthy and his health was not the reason he withdrew his application. At the formal hearing, and in his appeal, Montesanti claims his memory and attention was impaired during the application process by the effects of lack of sleep because he suffers from sleep apnea. These inconsistencies and evolving explanations for conduct relevant to the Board's determination of fitness demonstrate a lack of candor and honesty. "False, misleading or evasive answers to bar application questionnaires may be grounds for a finding of lack of requisite character and fitness." In re Beasley ,
2. One of Montesanti's grounds for challenging the Board's denial of his application is his claim that the Board improperly failed to verify or corroborate the derogatory statements about his character that were offered by a former law school professor who supervised his work as an intern at a public benefits law clinic while he was a student. Because Montesanti identified this professor as his supervisor at the legal clinic, the Board forwarded a questionnaire to the professor and she responded in writing with negative comments on Montesanti's character. Although Montesanti complains that the professor's response was not disclosed to him, the specifications served on him prior to *588the formal hearing identified the professor and **382indicated that she had stated she would not recommend Montesanti for a position of trust because he had difficulty relating to others in a professional manner and was not honest. Montesanti complains that the scope of the professor's responses to the questionnaire should have been limited to his work and conduct at the legal clinic, but instead, her telephonic testimony at the hearing showed that her negative comments related to Montesanti's conduct, and to conversations between the two, after his work at the clinic was complete and during a period of time when he sought her advice on the fitness application process.
According to the professor's testimony, Montesanti acknowledged to her that he had purposely omitted and withheld information sought by the Florida Bar in its fitness inquiry, and that he felt it was justifiable for him to do so, because he did not believe the Bar was entitled to have all the information it sought. He also asserts the professor's comments about him should have been excluded as privileged.
3. The primary ground for Montesanti's challenge to the Board's decision is his claim that the Board wrongly failed to make any **383accommodation for his claim that, during the application process, he was suffering from the disability of sleep apnea. Montesanti testified at the hearing that during the application process he received a diagnosis of sleep apnea, and he presented the sworn affidavit of a physician who reviewed the results of a sleep study performed on him. This physician opined that untreated sleep apnea induces, among other things, "inattention, ... induces or exacerbates cognitive deficits, [and] increases the likelihood of errors and accidents." He further opined that it was more likely than not that omissions Montesanti made on his Florida and Georgia Bar applications "were secondary" to his untreated sleep apnea, and that the treatment of this condition by the wearing of a CPAP machine during sleep had mitigated the severity of the cognitive deficits caused by the condition of sleep apnea.
According to Montesanti, sleep apnea is recognized as a disability under the Americans with Disabilities Act, 42 USCA § 12101 et seq. Even assuming, without deciding, that his sleep condition qualifies as a disability under the Act, Montesanti has failed to demonstrate he is entitled to an accommodation in the process of determining his character and moral fitness to practice law in this State. Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. 42 USCA § 12132. The term "qualified individual with a disability" is a defined term under the Act, meaning "an individual with a disability who, with or without reasonable modifications *589to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 USCA § 12131 (2). An applicant to the Georgia Bar is not a qualified individual for purposes of application of the ADA until he or she is certified as possessing the character and moral fitness to sit for the bar examination. Certification of fitness is an essential requirement to make an applicant eligible to sit for the bar examination. See Rules Governing Admission to the Practice of Law, supra, at Note from the Office of Bar Admissions.
Ample record evidence exists to support the Board's conclusion that Montesanti failed to carry the burden of establishing that he possesses the requisite character and fitness to be a member of the Georgia Bar. Consequently, we affirm the Board's decision to deny his application for certificate of fitness.
Denial of certification affirmed.
Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Boggs, and Peterson, JJ, concur. Blackwell, J., not participating.
At the hearing, Montesanti raised no objection to the professor's testimony on privilege grounds, and indeed admitted he did not have an attorney-client relationship with the professor.
See also Halpern v. Wake Forest Univ. Health Sciences ,