October 30, 2018 Adventures in the Law

Adventures in the Law: Too Sleepy to Be Truthful

By Norman G. Tabler Jr.

John Montesanti’s argument before the Supreme Court of Georgia was nothing if not imaginative. Denied admission to the Georgia bar for being untruthful in his application, John argued that he had simply been too sleepy to be truthful.

In its August 27 opinion, the court noted that the Fitness Board had found that John’s application demonstrated a pattern of failing to disclose relevant information and providing inconsistent statements. For example, when initially asked why he failed to pay a small claims court judgment against him, John said that he forgot to pay it but later said that he refused to pay it because he disagreed with it.

Then there was the question of why he had withdrawn his application to the Florida Bar after a preliminary recommendation of denial. In one letter to the Florida Bar, John cited financial reasons for the withdrawal; in another letter, he cited an “undetermined illness.”

At an informal hearing with the Georgia Board, John said that he couldn’t recall writing the second letter and didn’t know what he had meant by “undetermined illness,” assuring the Board that he was healthy and that his health was certainly not the reason for the withdrawal.

But at the formal hearing before the Georgia Board, John claimed that his memory and attention were impaired during the application process due to a lack of sleep as a result of his sleep apnea. That impairment, he insisted, had rendered him unable to be truthful, accurate, and forthcoming.

What’s more, John argued, his apnea qualifies as a disability under the ADA. Therefore, he reasoned that he was entitled to a reasonable accommodation for his disability. And just what accommodation did he seek? Waiver of character and moral fitness certification, based on his inability to be truthful, accurate, and forthcoming.

Not surprisingly, the court wasn’t buying it. The court opined that even if the ADA does apply to apnea—a question the court declined to address—an applicant wouldn’t qualify for its protection until he was certified as having the character and moral fitness to sit for the bar exam. John never got past that hurdle.

Maybe the lesson is that if you get caught in a lie, you need a better excuse than sleepiness.

The case is In the Matter of Montesanti, Sup. Ct. of Ga.

Author

Norman G. Tabler, Jr., is a retired partner with Faegre Baker Daniels, where he led the firm’s health law practice. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience, the ABA Health Law Section’s The Health Lawyer, and Law360 Health. He is the host of the American Health Lawyers podcast The Lighter Side of Health Law. He was educated at Princeton (A.B.), Yale (M.A.), and Columbia (J.D.). He may be reached at Norman.Tabler@FaegreBD.com.