Character and Fitness: Accused Professional Misconduct/What is a suspension

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LTrent2021

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Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Wed Dec 04, 2019 12:20 am

This question is reposted from reddit and is a little different from most as I was cleared of wrongdoing in the eyes of the Law: I was never charged with a crime and nobody ever said there was probable cause. I was a high school teacher and I had to stop one kid who had been running into my classroom from hurting other kids, which meant I had to attempt to restrain him after calling for help that never arrived. It was a very threatening situation. The kid accused me of assaulting him and the school placed me on non-disciplinary paid administrative leave for the rest of the year, which was about two weeks. I never taught school again, but there has never been any sanction on my teaching license. Eventually, I had to go to a Probable Cause Hearing, I believe because the kid filed the complaint, but I honestly don't know who filed the complaint. The judge looked at the evidence and said there was no probable cause, so I was never charged with any crime. Although, I decided not to teach in that environment again, the school had previously decided not to renew my contract.

Is paid-administrative leave a suspension? Some sources say yes, but others say no(https://www.leagle.com/decision/incaco20181002074). I'll disclose it if I have to, but I don't want it to delay or interfere with findings.

Will the fact-finder respect the finding of no probable cause, or will he want to interview and investigate all over again and make his own determination? The principal who put me on leave hated me for unrelated reasons concerning my suspected whistleblowing on the superintendent forging credentials, and some teachers supported me, and others did not.

Will I have to disclose this as an accusation of professional misconduct? If so, how will the investigation go?

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cavalier1138

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby cavalier1138 » Wed Dec 04, 2019 11:48 am

If the wording of the question is "accused of professional misconduct," then your situation seems to fit. Whether you were found criminally liable is a totally separate question.

You can consult a C&F attorney if you're on the fence, but I'd err on the side of disclosure.

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby nixy » Wed Dec 04, 2019 12:45 pm

Yeah, this depends on what the question asks, but I would err on the side of disclosure and would probably disclose it. I say that in part because the bar will have no interest in (or time or other resources necessary for) relitigating your case. I also don’t think this would create any problems for your admission.

But just to be clear - this was a criminal complaint, right? Not some quasi-judicial school board admin hearing? A complaint is a criminal charge, so you’d probably need to disclose that and explain that you were charged but the court found no probable cause and the charge was dismissed. (You may be doing that already, apologies if I misunderstood. But there’s a difference between saying you were never charged, and saying you were charged but there was no PC so the charge was dropped.)

LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Wed Dec 04, 2019 2:10 pm

nixy wrote:But just to be clear - this was a criminal complaint, right? Not some quasi-judicial school board admin hearing? A complaint is a criminal charge, so you’d probably need to disclose that and explain that you were charged but the court found no probable cause and the charge was dismissed. (You may be doing that already, apologies if I misunderstood. But there’s a difference between saying you were never charged, and saying you were charged but there was no PC so the charge was dropped.)


Ah, this is a little confusing. This was a Clerks Hearing in Massachusetts. Clerks aren't judges, and sometimes they aren't even lawyers, but Clerks' Hearings are legal proceedings that happen before any charges are filed or declared. In Massachusetts, a complaint is very different from a criminal charge. The Law is crystal clear about that. You're not formally charged with a crime until the indictment or arraignment, but before the arraignment for most misdemeanors, there's something called a probable cause hearing.(https://www.mass.gov/info-details/befor ... -hearing?-). It was at this probable cause hearing where no probable cause was found. I was never arrested, indicted, or arraigned, so I could not have been charged. My lawyer and the clerk both said I wasn't charged at any point. I may have to explain that.

LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Wed Dec 04, 2019 2:38 pm

nixy wrote:But just to be clear - this was a criminal complaint, right? Not some quasi-judicial school board admin hearing? A complaint is a criminal charge, so you’d probably need to disclose that and explain that you were charged but the court found no probable cause and the charge was dismissed. (You may be doing that already, apologies if I misunderstood. But there’s a difference between saying you were never charged, and saying you were charged but there was no PC so the charge was dropped.)


My wording in my previous reply was slightly off. Three attorneys I asked are saying if the "complaint does not issue," especially for lack of probable cause, then it is not an official criminal complaint from the State and the person is not actually charged. They're saying a person isn't charged in Massachusetts if the complaint doesn't issue at the show-cause hearing unless they bring the complaint again and the probable cause is found.

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cavalier1138

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby cavalier1138 » Wed Dec 04, 2019 9:36 pm

But getting back to your first question... Is this C&F question about a criminal proceeding, or is it asking about professional misconduct?

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby nixy » Wed Dec 04, 2019 11:02 pm

Ohhh, okay, I get it. Thanks for clarifying, I had never come across a system like that before.

LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Fri Dec 06, 2019 4:50 pm

cavalier1138 wrote:But getting back to your first question... Is this C&F question about a criminal proceeding, or is it asking about professional misconduct?


When I posted the question, I was thinking about the question about professional misconduct, but nixy's comments subsequently made me think about a criminal proceeding question.

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cavalier1138

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby cavalier1138 » Fri Dec 06, 2019 5:10 pm

LTrent2021 wrote:
cavalier1138 wrote:But getting back to your first question... Is this C&F question about a criminal proceeding, or is it asking about professional misconduct?


When I posted the question, I was thinking about the question about professional misconduct, but nixy's comments subsequently made me think about a criminal proceeding question.


Based on the information you've given, I think it's responsive to both questions (but again, consult a C&F attorney). Even though you were never charged, what you described sounds like a "criminal proceeding." It's all going to depend on the wording of the specific questions.

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LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Sat Dec 07, 2019 1:25 am

Thanks for the input, cav. The question is how much of an issue it's going to be. After talking to you and nixy, I don't think it'll be that big of a deal.

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby Tenzen » Sat Dec 07, 2019 5:14 pm

FWIW, a criminal proceeding begins with a prosecutor's decision to file criminal charges.

LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Tue Dec 10, 2019 11:28 am

Tenzen wrote:FWIW, a criminal proceeding begins with a prosecutor's decision to file criminal charges.


Sadly that doesn't help much because it's unclear when the prosecutor actually files the charges. Lawyers are telling me that they aren't filed until after the hearing if the state decides to issue a complaint. I'm probably going to disclose the hearing and write in the addendum that it isn't clear if a Magistrate's Hearing counts as a criminal proceeding or not.

The biggest thing I'm concerned about is the prospect of this application being held up for years. I'll keep you guys posted about what happens in the coming years.

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby nixy » Tue Dec 10, 2019 12:39 pm

Tenzen wrote:FWIW, a criminal proceeding begins with a prosecutor's decision to file criminal charges.

TBF, the Mass misdemeanor thing is weird - someone (including private citizens) applies to file a criminal charge, and the magistrate holds a PC hearing to see if there’s PC. If not, the application isn’t granted and the complaint doesn’t issue/charges aren’t filed. (I had never heard of this but it does seem to be an exception to the usual procedure of charge by complaint —> have a PC hearing.)

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LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Tue Dec 10, 2019 9:19 pm

nixy wrote:
Tenzen wrote:FWIW, a criminal proceeding begins with a prosecutor's decision to file criminal charges.

TBF, the Mass misdemeanor thing is weird - someone (including private citizens) applies to file a criminal charge, and the magistrate holds a PC hearing to see if there’s PC. If not, the application isn’t granted and the complaint doesn’t issue/charges aren’t filed. (I had never heard of this but it does seem to be an exception to the usual procedure of charge by complaint —> have a PC hearing.)


I found a pretty good description of it from Harvard Defenders:
https://clinics.law.harvard.edu/defende ... -hearings/

As a general rule, the people in Massachusetts like the system, but sometimes it needs to be tweaked and the state Supreme Court did order some small changes this summer such as keeping more records of them. Also, in my case, I can't stress enough, there was no probable cause. Sometimes, in other cases, clerks will issue "continuances" when they think there is probable cause, but the charges aren't worth pursuing. That is NOT what happened here.

For what it's worth, I'm probably not going to be seeking bar admission in Massachusetts right away but another state, which makes it a little tougher to explain the situation, but it's something every lawyer should be able to do, so I think I understand the expectation.

I'm also being told that paid administrative leave is not considered a suspension because it isn't disciplinary, but standard practice when investigating, but I'll disclose that too unless my lawyer gives me a very good reason not to do so.

LTrent2021

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Re: Character and Fitness: Accused Professional Misconduct/What is a suspension

Postby LTrent2021 » Sun Jan 05, 2020 1:11 am

Well, the good news is that I got a formal answer from an attorney about one issue: the clerk's probable cause hearing is NOT a criminal proceeding.
https://www.mass.gov/files/documents/20 ... ndards.pdf
"A criminal proceeding does not commence in the District Court until a complaint has been authorized."

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