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In re Bar Admission of Nichols

Supreme Court of Wisconsin

June 2, 2017

In the Matter of the Bar Admission of Charles A. Nichols:
Board of Bar Examiners, Respondent. Charles A. Nichols, Petitioner,

          SUBMITTED ON BRIEFS: February 20, 2017


         REVIEW of Board of Bar Examiners' decision. Decision reversed and remanded.

          For the petitioner, there were briefs filed by Tamara B. Packard, A.J. Grund and Pines Bach LLP, Madison.

          For the Board of Bar Examiners, there was a brief filed by Jacquelynn B. Rothstein, Director & Legal Counsel.

          PER CURIAM.

         ¶1 This is a review, pursuant to Supreme Court Rule (SCR) 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Charles A. Nichols, satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board's refusal to certify that Mr. Nichols satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Nichols' academic misconduct during his third year in law school and his failure to disclose certain matters on his bar application. After careful review, we reverse and remand the matter to the Board for further proceedings.

         ¶2 We appreciate the Board's concern regarding this applicant. We appreciate the thorough investigation the Board conducted into Mr. Nichols' background and past conduct. Mr. Nichols' application raised significant questions about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar. See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis.2d 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261 Wis.2d 150, 661 N.W.2d 27.

         ¶3 While we understand the Board's decision, we conclude that the incidents the Board relied upon, while troubling, are sufficiently offset by positive character evidence to warrant our conclusion that Mr. Nichols may be admitted to the practice of law in Wisconsin, albeit with conditions. Accordingly, we reverse.

         ¶4 Mr. Nichols began law school at the University of Wisconsin in the fall of 2012. In the summer of 2014, Mr. Nichols obtained a summer internship with the Office of the Lieutenant Governor. This internship was unpaid, so Mr. Nichols also worked nights and weekends at a restaurant, 35 to 40 hours per week. The Lieutenant Governor's office offered him a paid position at the end of the summer of 2014.

         ¶5 During the fall of 2014, his third year in law school, Mr. Nichols struggled to manage his work, volunteer service, and academic coursework. He began to neglect his academic work, including a Law of Democracy course. The grade for the course was almost solely based on a thirty-page research paper due at the end of the semester. The syllabus for the course stated that plagiarism would result in a failing grade.

         ¶6 Mr. Nichols submitted a final paper. The professor used an anti-plagiarism software program to check student papers. The report revealed that Mr. Nichols' final paper contained extensive language copied verbatim or nearly verbatim from four published law review articles, without citations. The repetition and nature of the matches led the professor to conclude that this could not have been coincidental. Mr. Nichols did not credit, in any form, the four law review articles from which he obtained the passages. The professor concluded that large portions of Mr. Nichols' final paper were plagiarized.

         ¶7 On January 15, 2015, the professor convened a meeting with Mr. Nichols, the director of student affairs, and an associate dean. When confronted with the apparent plagiarism, Mr. Nichols "told them immediately how he had developed the paper [with extensive cutting and pasting], and with complete candor." Mr. Nichols admitted that his paper was "a mess" but said that he did not intentionally commit plagiarism.

         ¶8 The law school determined that Mr. Nichols had engaged in academic misconduct by submitting a paper that was copied in substantial part from several existing legal publications with no attribution in violation of UWS 14.03(1)(a).[1] This conclusion is reflected in a letter from the professor to Mr. Nichols, dated January 23, 2015:

During our meeting, you confirmed that you drew material from these sources-in particular, the [law review] article. You further explained that your research and note-taking process involved cutting and pasting passages from [the law review article] and other sources, and you acknowledged that, in your rush to finish the paper, you may have (perhaps unintentionally) reproduced some of those passages without quotation marks, citations, or other attribution.

         As a sanction, Mr. Nichols received a failing grade on the paper and in the course. The UW-Madison Dean of Students' Office also reviewed the matter and imposed an additional sanction, requiring Mr. Nichols to take an on-line course on academic integrity and research methods. Mr. Nichols did so, and passed the exam.

         ¶9 In the spring of 2015, his final year, Mr. Nichols failed his required Professional Responsibility course because he failed to comply with the attendance policy; a student who received more than three unexcused absences would fail the course. Mr. Nichols retook the course and graduated from law school in December 2015.

         ¶10 On March 23, 2015, Mr. Nichols submitted his bar application to the Board pursuant to the diploma privilege, SCR 40.03. He disclosed the academic misconduct. However, during the ensuing standard character and fitness review, the Board identified a number of discrepancies and omissions in his bar application, including:

• Mr. Nichols had failed to report three underage drinking citations on his law school application. He did report them on his bar application. Mr. Nichols later explained that he did not "intend to purposely mislead." He subsequently amended his law school application, and was informed the information would not have affected his admission.
• Mr. Nichols failed to include on his bar application information regarding a 2007 eviction case in which he was named as a party. He had no actual involvement in the case. A former roommate owed rent and all roommates were listed as parties to the action. The matter was resolved without Mr. Nichols' involvement.
• Mr. Nichols failed to disclose on his bar application that in 2008, he sought and obtained a restraining order against a former girlfriend, for her harassment of him.
• Mr. Nichols failed to include information on his bar application regarding a citation he received on March 18, 2009 for an alleged absolute sobriety violation. Mr. Nichols explained that the citation was dismissed because testing revealed no detectible level of alcohol.

         Mr. Nichols amended his bar application on January 27, 2016 in response to the Board's inquiries. He said these omissions were accidental.

         ¶11 On April 11, 2016, the Board informed Mr. Nichols that his bar application was at risk of being denied for failing to establish his good moral character and fitness within the meaning of SCR 40.06(1) and Bar Admission Rule (BA) 6.01. Mr. Nichols requested a hearing.

         ¶12 The Board conducted a hearing on June 10, 2016, at which Mr. Nichols appeared and testified. He also offered character witnesses including his colleague and former supervisor Attorney Daniel Suhr, Chief of Staff and Legal Counsel to the Lieutenant Governor. Attorney Suhr stated he is "absolutely convinced that [Nichols] has the requisite integrity, diligence, and judgment to serve his clients and community well as an attorney in the State of Wisconsin." Professor Robert Yablon, the professor who identified Mr. ...

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