-: SJC 13062 Lionel Porter,
V Board of Bar Examiners.
-: Okay. Mr. Porter.
-: My name is Lionel Porter Pro Se.
Mrs. Chief Justice, and may it please the court,
this is a case which involves Article 12
of the Massachusetts Declaration of Rights,
Rules of the Board of Bar Examiners 5,1
and Mass General Law Chapter 221,
section 41, governing the unauthorized practice of law
and the combined interpretation
and application of these laws in determinations
about the petitioner's fitness for admission
to the Bar of the Commonwealth of Massachusetts.
On his 20th application,
the petitioner passed the Massachusetts bar,
the written portion, sitting on February 14th, 2014.
At sometime in April, 2014,
the petitioner was requested to attend an informal hearing
at the (indistinct) Board of Bar Examiners,
later scheduled for May 21st, 2014.
On May 22nd, 2014, the petitioner received a letter
from the board stating that his commission,
his admission could not be made at this time.
Following an investigation,
there was a formal hearing held on March 25th, 2016.
On September 7th, 2016, there was a non-qualification report
submitted to this court stating that
the petitioner should not be admitted.
On November 25th, 2020,
a single justice of this court affirmed,
this appeal follows.
The petitioner and attorney Stephen Hrones
began a business relationship in September, 2001.
Petitioner was a graduate of
the University of Connecticut School of Law.
He was subsequently legal redress chair
of the South Middlesex Branch of the NAACP.
In that capacity he filed race discrimination complaints
at the MCAD.
At some point to petitioner and attorney Hrones
agreed to solicit probable cause findings
from the commission.
The parties collaborated on a letter
that was sent to the commission on the firm's letterhead,
listing the petitioner as a paralegal.
In his first week or so at the Hrones firm,
the petitioner settled one of the firm's race,
gender discrimination complaints for $10,000.
Of that $10,000 Attorney Hrones retained one-third
of the petitioners share.
Over the next two years,
the petitioner's case load increased exponentially.
At one point there were 100 open files.
The petitioner did not have a computer
nor technical resources
and the result was some cases were not filed on time
and some discovery deadlines were not met.
The fact of the petitioner's case load was noted
by Hrones in a motion to set aside a judgment involving
a case that had been given to the petitioner
when he came to the firm.
Hrones statement about the caseload
and the inadvertences are notable.
He, meaning the petitioner, researches
and drafts key documents by hand
as opposed to on the computer.
These multiple duties existing on him resulted
in the unfortunate but inadvertent neglect in filing
the plaintiff's opposition to the defendant's motion
to dismiss within the allotted time.
There were complaints arising from the missed deadlines.
At one point, because of the complaints,
a call was made to attorney Hrones
by the assistant bar counsel,
demanding that he sever relationships with the petitioner.
The petitioner departed the firm in October, 2004.
He was not fired by Hrones
because he was never employed by the firm.
The missed deadlines resulted in issues
with the Mass Commission Against Discrimination
whereby the firm was disbarred,
was barred from filing complaints there, in part because
of non-appearance by Attorney Hrones in a case involving
a veteran, also because of missed filing deadlines
by the petitioner, as well as allegations
of the petitioner being engaged in
the unauthorized practice of law.
At one point, the petitioner did not split
or share the fees with Hrones but retained them himself,
had checks made out to him by the clients.
Male Judge: Mr. Porter, may I ask you a question?
-: Yes, sir.
-: First and foremost, a lot of people
would have given up long ago instead of taking
the bar 20 times and eventually passing,
you should be commended for your stick-to-itiveness.
One of the things that the single justice talked about
in the decision was the issue with the repossession
of the vehicle and some of your responses
as to how that happened.
Can you talk to us a little bit about that situation?
-: Thank you, sir, and I shall,
I was studying through the bar around that time.
I think the year must have been around 2007
and I had rented a place from an attorney friend.
I wasn't working, so I fell behind in the lease payment
so I decided to go to a Payday Loan outfit
that was based in Nashua, New Hampshire
and got a payday loan.
The collateral, I mean, the security was my BMW,
which was paid for.
So this was not a matter of a lender
coming after a car that was still being paid for.
I'd already paid for it.
The lender and I had agreed because of payments being
in arrears that I would catch up.
Here before I'd been going to the lender
and hand-delivering payments to them.
In this instance, I'd fallen behind
and had gotten assurances from the lender
that nothing would occur
they would allow me a chance to catch up,
notwithstanding that agreement,
an agent was sent to pick up the car.
I saw someone outside with a tow truck,
lights were flashing.
I didn't take note of it right away
because I was studying for the bar
but when I looked out the outside again,
I saw that the person was still there talking on the phone.
It made me uncomfortable because I thought
perhaps this was someone coming to repossess,
to take the car, not repossess because it was never,
it was always my car.
It was paid for.
The party apparently went someplace else
because I took the car and moved it.
And when I came back, they were parked on another street.
And at some point I decided to go outside and move the car.
The agent saw me getting in the car,
turn the key and he banged on the driver's side,
yelled an epithet and wanted to have me get out of the car.
I refused to do so because in my estimation,
in my view, there had already been in agreement, okay,
that I'd have time to make restitution.
The agent got in front of the car
and as I was trying to move it
and I was inching along, you know, not at a high speed,
barely moving because I was cognizant of his presence.
The intent was not to injure him,
but he stood there and pushed onto the hood.
And at one point jumped on top of the hood,
which I thought was, you know, ridiculous
under the circumstances.
Man: Thank you.
Male Judge: Mr. Porter, can I ask you another question
just for clarification?
-: Yes, sir.
-: You told us that you were not employed by Mr. Hrones
and then you also characterized yourself
in your efforts for him as being his paralegal.
What was your relationship with Mr. Hrones?
-: It's been described as a paralegal relationship.
I'm not sure that's accurate, but that's.
-: I want, you tell me how you would describe it.
-: I would describe it, as I said at the outset
as having a collaborative relationship with Hrones,
I don't think it was conventional paralegal relationship,
as I understand it, where someone hires you,
you're on their payroll, you have employment benefit,
you have benefits, that seems to fit the definition,
the more conventional definition of a paralegal.
That was not me,
we'd come together to talk about how to
in some ways, give me experience
okay, watching a skilled attorney
who had a reputation as a civil rights lawyer,
gain skills watching him, learning from him.
So, you know, it's a title that I've been struggling
with myself because I didn't see it
as a conventional paralegal relationship with a firm.
-: Did you find cases for Mr. Hrones?
-: I filed cases?
-: Or did you find them for him?
Did you refer cases to Hrones?
-: There were cases that I had at the NAACP.
There may have been two or three that I referred
or brought to him from the NAACP.
Now I didn't market, advertise or solicit.
The cases that came to the firm primarily
were cases that were referred by
the Boston Bars Referral Service.
That was where the majority of the cases came from, okay?
The remaining came from,
were sourced from the letter that we had collaborated on
and that had been sent through the MCAD.
I did not advertise, solicit or market.
-: Thank you, Mr. Porter.
-: Yes, sir.
Female Judge: Okay, are there any other questions?
No, thank you.
Okay, thank you so much, Mr. Porter.
Okay, Attorney Welnicki.
-: Thank you.
May it please the court, Matthew Welnicki
for the Board of Bar Examiners.
Judges, we are here today to talk about
the burdens and standards with respect to bar admissions.
Now, most importantly,
the Board of Bar Examiners is the gatekeeper.
Sure you're all aware of their function.
There are certain standards that the Board of Bar Examiners
has, they're by statute, they're by SJC rule,
they're by the BBE's own rules.
Under those standards, the burden is on the petitioner,
the applicant to show that he or she has
the requisite character and fitness to practice law,
it is very commendable and I agree, your honor,
that Mr. Porter had to stick-to-itiveness
to take the bar 20 times, pass the bar.
That's not what brings us here today.
Among those standards and burdens on which again,
Mr. Porter has the burden of proof
is not only showing the requisite character and fitness,
but also if there are concerns in the past
to showing that there's been some degree of rehabilitation.
Now we looked through Mr. Porter's papers,
we hear a lot and what we heard today
was a lot about what may have
happened when you worked with Mr. Hrones.
We heard about the repossession incident,
throughout the papers we have other instances
that are mentioned,
the single justice also mentioned in her decision,
as well as the board's itself in their findings
concerns that the board has with some inconsistencies,
possible non-disclosures, inconsistent disclosures
throughout the 20 different applications.
Those are very important when the petitioner wants
to satisfy that burden to become an attorney
here in Massachusetts.
One of the reasons why the petitioner in these cases
has that burden of proof,
because there's not a right to practice law.
As this court held in the Prager matter,
becoming an attorney,
becoming a member of the bar is what this court
has referred to as a peculiar privilege.
It's a privilege that someone has to show
that they meet that burden in order to practice.
And that's because,
especially with the Board of Bar Examiners
being the gatekeeper,
they have to make sure that the person can represent others,
can serve a public service.
They stand out as an officer of the court.
They stand out as a representative of people.
So that burden becomes very important.
And when we have things like non-disclosures
or inaccurate disclosures, it's very troubling
to the board because then the board has
to go through materials to find out
what the story actually is, what's going on there.
And when we get to the rehabilitation point,
the cases talk about the,
there's no crime or no action
that's probably too egregious to prevent someone
from ever becoming rehabilitated
and becoming a member of the bar.
But that also cuts both ways, your honors.
You know, in some of Mr Porter's papers,
he suggests that what's in his past
isn't as egregious as some of the abject criminality
and some of the other matters that we cite.
But again, it's a two-way street.
When this court says that there's no crime or no action
that's too egregious that can allow for rehabilitation,
there's also no action that's too diminimous
or too non-problematic that doesn't mean
you can skip over the rehabilitation.
Male Judge: How does he rehabilitate himself?
-: He can rehabilitate himself by showing community service,
dedication to the public, education and training classes
and above all, your honor,
showing a fundamental awareness of what the conduct was,
what the problems were, how it can be avoided in the future.
What I'm hearing today
when the questions were asked about
the unauthorized practice of law
or the volunteered statements about the
unauthorized practice of law, I believe he said
that Mr. Hrones kept his share
yet he wasn't employed by Mr. Hrones.
I don't believe there's been any acknowledgement
throughout these proceedings,
that there was serious concerns about
the unauthorized practice of law.
Same thing with the repossession,
same thing with the disclosures among the applications.
Rather when you read the papers,
the answers that are given are answers
about his counsel during the BBE proceedings
not providing him a copy of the draft report,
the investigative report
and what happens in these BBE proceedings
is an investigative report is prepared,
they state not only the concerns that the BBE has,
if you read the investigative report here
also mentioning any information that the petitioner
wants to provide, information about rehabilitation,
what they're doing.
For example, there's a portion of the investigative report
that mentions, it wasn't a disclosure
about one civil action, but Mr. Porter says
that he was not aware of that civil action
and the investigative report actually notes that
we went back to the courts and found that
his story about not being aware of the default
in that action could be supported
by lack of notice through the court filings.
So it's not a one-sided process, but Mr. Porter claims
that he didn't get a copy of that investigative report
until his own attorney provided to him after the hearing.
Well that investigative report was exhibit number one,
and I believe the only exhibit to the evidentiary hearing
held by the Board of Bar Examiners.
And that argument about not having the investigative report
until this proceeding, that was never raised
at the single justice or to the Board of Bar Examiners
after the fact.
And again, this is not a right to effective assistance
of counsel case.
This is not something where Mr. Porter's liberty
is at stake.
This is a situation where he's trying to meet
his burden of becoming an attorney.
Someone that would recognize that if there were problems
with the process, they should be raised promptly.
And when we look at what's in the investigative report,
that's obviously very important,
but what's more important is that Mr. Porter comes
to this court and shows that he has the character
and fitness that he has been rehabilitated
if there are problems out there.
When Mr. Porter has the opportunity in his papers
to talk about what he's done,
he mentioned that he has taught classes, that's admirable.
It's vague on what classes he's taught or when he's taught.
There's other mentioned that he feels repentance
or remorse for some of the conduct, no specifics, no gen,
it's all generalities in there.
So it's very tough to see that there
has been any rehabilitation.
Aspirations, goals about what he might do in the future,
again, those are something that are admirable
but they don't show present character
and fitness to practice law.
I don't think I need to go into all the details
about why the single justice was concerned,
why the board itself was concerned.
Those are all in the papers.
Those are all in the single justice's report.
That's in the BBE's report.
That's in the special investigative report.
It's all out in papers.
The purpose isn't to pile on here
the concerns that were had,
and I'm not going to do that today.
If you have any concerns about that,
you can look for yourself.
The bigger concern I have here is the standards
and the burdens and I don't believe
that they are being fully addressed by Mr. Porter
in coming to this court,
asking to become a member of the bar.
If there are any questions,
I'm happy to answer them right now.
Female Judge: Okay, it looks like we're all set.
Thank you very much.
-: Thank you very much, your honors.