{ "id": 862750, "name": "Randall Mark SHOCHET v. ARKANSAS BOARD of LAW EXAMINERS", "name_abbreviation": "Shochet v. Arkansas Board of Law Examiners", "decision_date": "1998-11-19", "docket_number": "98-369", "first_page": "176", "last_page": "188", "citations": [ { "type": "official", "cite": "335 Ark. 176" }, { "type": "parallel", "cite": "979 S.W.2d 888" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "215 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "112 Ariz. 134", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 584705 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ariz/112/0134-01" ] }, { "cite": "252 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "243 Ga. 134", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1168941 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ga/243/0134-01" ] }, { "cite": "464 A.2d 881", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7970988 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/a2d/464/0881-01" ] }, { "cite": "475 A.2d 349", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7899241 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "353" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/a2d/475/0349-01" ] }, { "cite": "411 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "81 Ill.2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481421 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0485-01" ] }, { "cite": "104 A.2d 609", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1954, "opinion_index": 0 }, { "cite": "15 N.J. 252", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1337022 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nj/15/0252-01" ] }, { "cite": "467 A.2d 1084", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "1091" }, { "page": "1091", "parenthetical": "stating that \"[o]ne particularly relevant type\" of evidence that is \"probative of reform and rehabilitation\" is \"candor before the Committee\"" }, { "page": "1088" }, { "page": "1091" } ], "opinion_index": 0 }, { "cite": "94 N.J. 458", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1347413 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nj/94/0458-01" ] }, { "cite": "661 P.2d 160", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "650 So.2d 34", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7441717 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/so2d/650/0034-01" ] }, { "cite": "709 So.2d 1377", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11880000 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "1381" } ], "opinion_index": 0, "case_paths": [ "/so2d/709/1377-01" ] }, { "cite": "310 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898896 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "441" }, { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0435-01" ] }, { "cite": "320 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451263 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "41" }, { "page": "908" }, { "page": "45" }, { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/ark/320/0037-01" ] } ], "analysis": { "cardinality": 874, "char_count": 20516, "ocr_confidence": 0.751, "pagerank": { "raw": 1.0572546959086603e-07, "percentile": 0.5556517001570361 }, "sha256": "6a5795ec46c43ddaf1e33f5778dee5f601a39214d8e7690be285bfed6323e52b", "simhash": "1:3f7a07d6d545aa5a", "word_count": 3284 }, "last_updated": "2023-07-14T15:28:04.221219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Randall Mark SHOCHET v. ARKANSAS BOARD of LAW EXAMINERS" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is an appeal from a decision of the Arkansas Board of Law Examiners denying the application of appellant Randall Mark Shochet for admission to the Bar of this Court. Mr. Shochet has completed the necessary educational requirements, and he passed the Arkansas Bar Examination in July 1996. The Board determined, however, that Mr. Shochet failed to establish \u201cgood moral character beyond a preponderance of the evidence,\u201d as required by Rule XIII of the Rules Governing Admission to the Bar, and denied his application on that basis. Mr. Shochet argues on appeal that the Board\u2019s findings and conclusions underlying its decision are clearly erroneous. We affirm the Board\u2019s decision.\nMr. Shochet attended dental school in Florida after completing his undergraduate studies in 1981. He later moved to Missouri, where, in 1986, he obtained a license to practice dentistry. In 1990, the Missouri Dental Board filed a complaint before a state administrative agency claiming that Mr. Shochet, in 1988 and 1989, had billed an insurance company for dental services he had not rendered. The Dental Board also claimed that Mr. Shochet had provided its officials with false information during their investigation of the matter and that he had committed perjury while testifying before the Dental Board.\nMr. Shochet enrolled in the St. Louis University School of Law in August 1991. In February 1992, Mr. Shochet and the Missouri Dental Board resolved the matter described above. The Dental Board abandoned its pegury charge, and Mr. Shochet admitted he had billed an insurance company for services he had not rendered. Mr. Shochet accepted a 120-day suspension of his dentist\u2019s license commencing April 1, 1992, and running through July 29, 1992.\nIn March 1992, prior to the commencement of the suspension period, Mr. Shochet entered into an agreement with Dr. Glenn D. Yowell providing for Dr. Yowell to assume Dr. Shochet\u2019s dentistry practice. The agreement provided as follows:\nDr. Shochet agrees to furnish the dental facility located at [address given], including all equipment, instruments, and supplies to Dr. Yowell in exchange for an amount to be mutually agreed upon.\nSuch reimbursal will not be measured against patient fees and billings, and is not \u201cfee splitting.\u201d It is only based on the usage of the dental office.\nDr. Yowell is to provide his own professional liability insurance.\nOur relationship may be terminated on either side by either giving the other three (3) weeks notice of their intention to terminate.\nMr. Shochet and Dr. Yowell signed a separate document \u2014 a letter dated March 9, 1992, and written by Mr. Shochet \u2014 that reflected further details of their arrangement. Mr. Shochet referred to Dr. Yowell as \u201can independent contractor Dentist\u201d and indicated that Dr. Yowell was to \u201cperform dental services on our patients at our office by appointments set by us Monday thru Friday or to be amended by mutual agreement.\u201d The letter revealed that Mr. Shochet would pay Dr. Yowell \u201cthe sum equal to 25% of the collections made for [his] billable services.\u201d Mr. Shochet \u201cguaranteed\u201d Dr. Yowell \u201ca minimum of $3000 a month.\u201d\nMr. Shochet returned to his dentistry practice at the conclusion of the suspension period. He completed a Uniform Application for Securities Industry Registration or Transfer in April 1993 and was issued a Series 7 Securities License. Mr. Shochet sold his dental practice and, in August 1993, returned to Florida, where he worked for his father\u2019s securities business.\nIn November 1993, the Missouri Dental Board filed a second complaint against Mr. Shochet alleging that he had practiced dentistry during the period in which his license was suspended. The Dental Board referred to the agreement between Mr. Shochet and Dr. Yowell. It alleged that payments from patients or third parties received for work done by Dr. Yowell and a Dr. Rivera had been \u201cdeposited into a bank account which was in the name of [Mr. Shochet]\u201d; that Dr. Yowell had been paid for his services pursuant to the agreement; and that Mr. Shochet had submitted claim forms to insurance companies and had received payment for dental work rendered during the suspended period. The Dental Board alleged that Mr. Shochet\u2019s conduct violated regulatory provisions that prohibit a suspended dentist \u201cfrom receiving any compensation from any person, group practice, partnership or corporate practice, or any dental office in this state, during the period of suspension or revocation\u201d and from accepting \u201cfees from any capitation or third party payment program to which he might otherwise be entitled.\u201d\nMr. Shochet resumed his legal education at the University of Miami at Coral Gables School of Law in January 1994. In October 1994, Mr. Shochet and the Missouri Dental Board resolved the matter of his alleged practice upon a suspended license. Mr. Shochet admitted the Dental Board\u2019s allegations and surrendered his Missouri dentistry license. In December 1995, Mr. Shochet completed law school and earned his Juris Doctor degree.\nOn May 31, 1996, Mr. Shochet applied for admission to the Bar of this Court. Mr. Shochet was allowed to take the July 1996 bar examination subject to a continuing character and fitness investigation in the event that he passed the examination, which he did. The chairman of the Board of Law Examiners was unable to determine Mr. Shochet\u2019s eligibility, and Mr. Shochet appeared pro se at a hearing before three members of the Board and the Board\u2019s executive secretary.\nBy a vote of 10-1, the Board determined that Mr. Shochet failed to establish by a preponderance of the evidence that he possessed \u201cgood moral character\u201d and, for that reason, denied his application for admission. The Board based its conclusion on (1) the facts surrounding the suspension and surrender of Mr. Shochet\u2019s Missouri dentist\u2019s license and his explanation of that situation to the Board during the hearing; (2) Mr. Shochet\u2019s responses to questions on both the Arkansas Bar Application Character Questionnaire and the application for the Series 7 Securities License, as well as his explanation of those responses made during the hearing; and (3) evidence that, in the Board\u2019s view, demonstrated Mr. Shochet\u2019s lack of \u201cfiscal responsibility.\u201d Mr. Shochet now seeks reversal of the Board\u2019s decision and maintains that he \u201cestablished sufficient good moral character\u201d and should be admitted to the Bar of this Court.\n\u201cThe applicant has the burden of proving eligibility and must do so by a preponderance of the evidence.\u201d Partin v. Bar, 320 Ark. 37, 41, 894 S.W.2d 906, 908 (1995). See Rule XIII of the Rules Governing Admission to the Bar. \u201cWe review bar admission and reinstatement cases de novo, and we will not reverse the findings of fact of the Board unless they are clearly erroneous.\u201d Partin v. Bar, supra. See In re Application of Crossley, 310 Ark. 435, 441, 839 S.W.2d 1, 3 (1992). We hold that the Board\u2019s findings are not clearly erroneous and affirm its decision denying Mr. Shochet\u2019s application for admission.\n1. The Missouri dental license\nThe Board\u2019s decision rested in part on its factual findings concerning the suspension and surrender of Mr. Shochet\u2019s Missouri dentist\u2019s license. As mentioned, Mr. Shochet was suspended from the practice of dentistry in Missouri based on his admission to having billed an insurance company for services not rendered. Mr. Shochet admitted his culpability as to that allegation during the hearing, and, although the Missouri Dental Board had dropped its pegury charge, Mr. Shochet further admitted in the hearing that he had indeed committed pegury before the Missouri Dental Board. The Board found that Mr. Shochet \u201cknowingly engaged in fraud and misrepresentation by billing for services not rendered during the period of 1988-1989. Further, the applicant resorted to perjury to thwart the investigative efforts of the Missouri Dental Board.\u201d\nMr. Shochet later surrendered his dentist\u2019s license following his admission that he had practiced dentistry during the period in which his license was suspended. During the hearing before the Board, however, Mr. Shochet maintained that he had done \u201cnothing wrong\u201d with respect to the unlicensed-practice charge. He conceded that, \u201clegally,\u201d he had engaged in the unlicensed practice of dentistry, but he asserted that his actions were based upon the advice of counsel. Mr. Shochet testified that he chose to admit to the Missouri Dental Board\u2019s allegations and surrender his dentist\u2019s license only because (1) he wanted to foreclose the possibility of having his license revoked, which he perceived as a more severe sanction; (2) he lacked the financial resources to defend the charge; and (3) he saw no \u201cpurpose\u201d in defending the charge because he was living in Florida and attending law school there, he did not intend to use his Missouri dentist\u2019s license again, and he planned to pursue a legal and dentistry practice in Florida.\nThe Board found that Mr. Shochet\nnow denies responsibility for practicing dentistry while his license was suspended. He avers that his actions were based upon advice from his attorneys. He also suggests that his admission of culpability was a matter of expediency and convenience.\nThe record shows that on January 15, 1992, prior to the beginning of the suspension period, the applicant\u2019s attorney set forth the circumstances under which the applicant could \u201crent\u201d his office during the period of suspension. That letter made clear that the suspension prohibited the applicant from drawing any income from patients.\nBy letter of March 9, 1992, the applicant, apparently without assistance of legal counsel, entered into an agreement with Dr. Glenn D. Yowell. Through the agreement with Dr. Yowell, he (the applicant) would control appointments, billing and equipment, etc. Any sums collected which exceeded Dr. Yowell\u2019s 25% and office expenses would flow as income to the applicant.\nThe applicant associated Dr. Yowell as an \u201cindependent contractor\u201d to continue receipt of patient income, contrary to the terms of his license suspension. Further, a majority of the Board gives little weight to the applicant\u2019s protestations that his arrangement with Dr. Yowell was based upon legal advice and that his admission of culpability was solely to avoid further litigation.\nWe cannot say that these findings of the Board of Law Examiners are clearly erroneous. Mr. Shochet admitted that he committed insurance fraud and peijury, and the Board properly considered this past misconduct in determining whether Mr. Shochet\u2019s possessed \u201cgood moral character.\u201d\nIt also was appropriate for the Board to take into account Mr. Shochet\u2019s practice of dentistry on a suspended license \u2014 misconduct that Mr. Shochet acknowledged in administrative proceedings in Missouri. In the hearing before the Arkansas Board of Law Examiners, however, Mr. Shochet denied responsibility for his misconduct. He asserted that his counsel had approved his plans for the operation of his dentist\u2019s office during the suspension period, and he suggested that his admission to the unlicensed-practice charge was motivated, in the words of the Board, only by \u201cexpediency and convenience.\u201d\nThe Board obviously found Mr. Shochet\u2019s explanation disingenuous. It determined that Mr. Shochet was unable \u201cto accept responsibility for his actions,\u201d and we cannot say that determination was clearly erroneous.\nNor is the Board\u2019s finding on this point contrary to the rule established in Florida Board of Bar Examiners re G.J.G., 709 So.2d 1377 (Fla. 1998); Florida Board of Bar Examiners re M.C.A., 650 So.2d 34 (Fla. 1995); and Martin B. v. Committee of Bar Examiners, 661 P.2d 160 (Cal. 1983), which are cited by Mr. Shochet. According to those cases, an applicant should not be denied admission on account of his or her assertion of innocence regarding a charge of past misconduct where the applicant has not been found \u201cguilty\u201d of the charge and has consistently maintained his or her innocence with respect to it.\nThose cases do not assist Mr. Shochet here. Mr. Shochet has not consistently maintained his innocence with respect to the unlicensed-practice charge. He admitted the truth of the charge in proceedings before a Missouri agency and agreed to surrender his dentist\u2019s license. In the hearing before the Board of Law Examiners, however, Mr. Shochet changed his story, blamed his former attorneys, and essentially attempted to retract his prior admission of guilt. We find nothing in the cases cited by Mr. Shochet that precluded the Board from concluding, on the basis of Mr. Shochet\u2019s testimony, that he failed to accept responsibility for past misconduct that he previously acknowledged and for which he was sanctioned. An applicant\u2019s \u201ccontinued denial\u201d of an act for which he or she has been found guilty or sanctioned \u201cdoes not serve the applicant well\u201d in bar-admission proceedings and is, in fact, \u201cunacceptable.\u201d Florida Board of Bar Examiners re G.J.G., 709 So.2d at 1381.\n2. Candor\nThe effect of Mr. Shochet\u2019s unlicensed practice of dentistry upon his bar application, and perhaps the effect of his commission of insurance fraud and perjury, might have been diminished had Mr. Shochet shown that he had undergone \u201csuccessful rehabilitative efforts.\u201d Partin v. Bar, 320 Ark. at 45, 894 S.W.2d at 910. As the Supreme Court of New Jersey observed,\n[a] fundamental rule in bar admission cases is that evidence of reform and rehabilitation is relevant to determine an applicant\u2019s present fitness to practice law. If an applicant\u2019s behavior subsequent to the disqualifying misconduct convincingly demonstrates rehabilitation, it can overcome the adverse inference of unfitness arising from past misconduct, and if persuasive, it may support a finding of present fitness.\nApplication of Jenkins, 94 N.J. 458, 467 A.2d 1084, 1091 (1983).\nAs we said in the Partin case, however, an important aspect of \u201crehabilitation\u201d is an applicant\u2019s \u201ccandor about the past.\u201d Partin v. Bar, supra. See also Application of Jenkins, 467 A.2d at 1091 (stating that \u201c[o]ne particularly relevant type\u201d of evidence that is \u201cprobative of reform and rehabilitation\u201d is \u201ccandor before the Committee\u201d).\nOn the \u201ccandor\u201d issue, the Board found that Mr. Shochet had given false, misleading, or incomplete answers on his May 1996 Arkansas Bar Application Character Questionnaire and on his April 1993 application for a Series 7 Securities License. As we cannot say the Board\u2019s findings on this point are clearly erroneous, those findings not only supply an independent basis for the Board\u2019s decision to deny Mr. Shochet\u2019s application but also demonstrate that Mr. Shochet has not rehabilitated himself since the period of time in which he defrauded an insurance company, peijured himself before a state agency, and practiced dentistry on a suspended license.\nThe Board found that Mr. Shochet was asked in Question 9(c) of the Arkansas Bar Application Character Questionnaire whether he had ever been accused of fraud. Although it is undisputed that the Missouri Dental Board had accused Mr. Shochet of insurance fraud and that Mr. Shochet had admitted to that misconduct, he answered \u201cno\u201d to Question 9(c). Mr. Shochet testified that, in consultation with counsel, he answered \u201cno\u201d to Question 9(c) because he concluded that the insurance-fraud matter was addressed in his answer to Question 15(d), which inquired whether a licensing authority had ever taken any disciplinary action against Mr. Shochet. Mr. Shochet admitted, however, that it would have been \u201cbetter\u201d to have responded \u201cyes\u201d to Question 9(c).\nThe Board also found that Mr. Shochet was asked in Question 15(a) of the Arkansas Bar Application Character Questionnaire whether he had \u201cever applied for a license, other than as an attorney at law, the procurement of which required proof of good moral character or examination (i.e., certified public accountant, patent attorney, real estate broker, etc.).\u201d Although Mr. Shochet had applied for, and received, a Series 7 Securities License, and although that process required proof of \u201cgood moral character,\u201d Mr. Shochet failed to disclose the Series 7 Securities License in his answer to Question 15(a). In the hearing, Mr. Shochet acknowledged that he had failed to list the securities license, expressed regret for the omission, and said that he had \u201cno excuse.\u201d He then sought to justify his incomplete answer, however, by arguing that he was not really a \u201cstockbroker.\u201d\nFinally, the Board found that, in his application for the Series 7 Securities License, Mr. Shochet was asked whether any federal or state regulatory agency or foreign financial regulatory authority had ever found him to \u201chave made a false statement or omission or been dishonest, unfair, or unethical.\u201d Again, although Mr. Shochet had admitted to the charge of insurance fraud filed by the Missouri Dental Board, he answered \u201cno\u201d to this question. He testified before the Board that his answer had resulted from \u201cadvice of counsel\u201d and his misunderstanding of a \u201cpoorly worded question.\u201d\nThe Board found that Mr. Shochet\u2019s\nresponses to the various inquiries noted above [evince] a pattern of less than full disclosure to the Arkansas Board of Law Examiners and the Securities Licensing Authority. The applicant again attempts to shift responsibility either to \u201cadvice of counsel\u201d or his misunderstanding of poorly worded questions.\nThe Board later concluded that Mr. Shochet\nhas engaged in false and deceptive practices in completing the various applications for professional licenses. The instances where the applicant either chose to mislead or failed to fully inform are numerous. The initial willful fraud arose in connection with the first proceeding brought by the Missouri Dental Board in 1990. The record shows that the applicant has continued to engage in behavior which brings into question the applicant\u2019s ability to accept responsibility for his actions and his capacity for truthfulness and candor.\nTruthfulness, honesty, and candor are \u201cnecessary characteristics for establishing a candidate\u2019s good moral character and hence his or her fitness to practice law.\u201d Application of Jenkins, 467 A.2d at 1088. There simply is \u201cno place in the law for a man or woman who cannot or will not tell the truth, even when his or her own interests are involved. In the legal profession, there must be a reverence for the truth.\u201d Id. at 1091 (quoting In re Hyra, 15 N.J. 252, 104 A.2d 609 (1954)).\nAn applicant must \u201crespond fully and accurately to those questions posed in an application for admission to the bar.\u201d In re Ascher, 81 Ill.2d 485, 411 N.E.2d 1, 7 (1980). He or she has an \u201cunremitting duty of candor to all persons charged with investigating and passing upon\u201d his or her qualifications. Kosseff v. Board of Bar Examiners, 475 A.2d 349, 353 (Del. 1984). \u201cMoreover, the attributes of honesty and candor are absolute prerequisites to the admission to our Bar.\u201d Id. (emphasis added). See also In re Green, 464 A.2d 881 (Del. 1983); In re Beasley, 243 Ga. 134, 252 S.E.2d 615 (1979); Application of Walker, 112 Ariz. 134, 539 P.2d 891 (1975); In re Willis, 215 S.E.2d 771 (N.C. 1975). See Charles W. Wolfram, Modern Legal Ethics \u00a7 15.3.2, at p. 863 (1986).\nHere, the Board found that Mr. Shochet was less than candid in his responses to two questions on the Arkansas Bar Application Character Questionnaire and one question on his application for a Series 7 Securities License. We cannot say the Board\u2019s findings are clearly erroneous. Mr. Shochet offered explanations for his answers, but we cannot say that the Board erred by finding that his explanations were not credible, as it apparently did.\nThe Board\u2019s decision to deny Mr. Shochet\u2019s application for admission was justified on the basis of Mr. Shochet\u2019s misconduct in his dentistry practice in Missouri; his failure to accept responsibility for certain aspects of that misconduct; his failure to show that he has \u201crehabilitated\u201d himself since engaging in that misconduct; and his lack of candor in answering questions on applications for professional licenses. Because we affirm the Board\u2019s decision on the basis of these factors, it is unnecessary to discuss the Board\u2019s additional finding that Mr. Shochet displayed a lack of \u201cfiscal responsibility.\u201d\nAffirmed.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Appellant, pro se.", "W. Frank Morledge, P.A., for appellee." ], "corrections": "", "head_matter": "Randall Mark SHOCHET v. ARKANSAS BOARD of LAW EXAMINERS\n98-369\n979 S.W.2d 888\nSupreme Court of Arkansas\nOpinion delivered November 19, 1998\nAppellant, pro se.\nW. Frank Morledge, P.A., for appellee." }, "file_name": "0176-01", "first_page_order": 198, "last_page_order": 210 }