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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Nash (7/29/2011) sp-6585

In Re Nash (7/29/2011) sp-6585, 257 P3d 130

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
        K   Street,   Anchorage,   Alaska   99501,   phone   (907)   264-0608,   fax   (907)   264-0878,   email 


In the Matter of MICHAEL P. NASH,               )       Supreme Court No. S-13405 
Applicant to the Alaska Bar                     ) 
Association.                                    )       ABA No. 2007A002 
                                                )       O P I N I O N 
                                                )       No. 6585 - July 29, 2011 

                Appeal from the Decision of the Board of Governors of the 
                Alaska Bar Association. 

                Appearances: Mark McCormick, Belin Lamson McCormick 
                Zumbach Flynn, P.C., Des Moines, Iowa, and Fred W. Triem, 
                Petersburg,     for   Appellant.     Stephen     J.  Van    Goor,    Bar 
                Counsel, Alaska Bar Association, Anchorage. 

                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 
                Christen, Justices. [Eastaugh, Justice, not participating.] 

                CARPENETI, Chief Justice.
                FABE, Justice, dissenting.


                Based on a negative moral character determination, the Board of Governors 

of the Alaska Bar Association denied an application to the Alaska Bar. In particular, the 

Board found that the applicant - a former priest - was not truthful regarding aspects 

of his departure from the priesthood, which was clouded by allegations of misconduct. 

The applicant appeals, arguing that the Board erred by misstating the record and relying 

on hearsay evidence and information not in the record. Further, the applicant claims that 

----------------------- Page 2-----------------------

certain members of the Board should have disqualified themselves, and that the overall 

errors amount to a violation of due process.          Because we agree that there were serious 

flaws   in   the   Board's   decision,   we   set   aside   its   findings. Because   we   have   final 

responsibility and authority to determine the standards for admission to the practice of 

law in Alaska, we apply our independent judgment to the matter, find the applicant meets 

the moral character requirements for admission to the Alaska Bar, and direct the Board 

to proceed consistent with this opinion. 


        A.      Procedural Posture 
                On December 3, 2007, Michael Nash, a member of the Iowa Bar,1 applied 

for admission to the Alaska Bar.          The Alaska Bar appointed a hearing master, who 

conducted a hearing assessing Nash's character and fitness.              On August 28, 2008, the 

hearing   master   issued   a   proposed   decision   to   the   Alaska   Bar   Association   Board   of 

Governors   recommending   that   the   Board   conclude   that   Nash   met   the   standard   for 

character and fitness. 

                The Board considered the matter at its meeting of October 30, 2008, where 

Nash's attorney and the Bar Counsel could respond to the Board's questions.  Rejecting 

the hearing master's recommendation, the Board denied Nash's application on January 

9, 2009. 

                Nash now appeals the Board's denial of his application. 

        1       See In re Nash, 739 N.W.2d 71 (Iowa 2007) (reversing decision of the Iowa 

Bar Association and permitting Nash to sit for the Iowa bar examination). 

                                                  -2-                                              6585 

----------------------- Page 3-----------------------

        B.      Facts 

                1.      Early priesthood 

                Michael Nash, currently 60 years old, was a priest in Southeast Alaska for 

the   better   part   of   the   25  years   between   1980   and   2005.  He   was   based   in   larger 

communities - Juneau and Ketchikan - and often served smaller communities by 

plane. During the 1980s Nash often took trips and brought boys along on the trips. These 

trips   included   local   travel   in   Southeast   Alaska   and   more   extensive   travel   to   such 

destinations as San Francisco and Hawaii. 

                Nash had inappropriate contact with some of the boys on these trips.  Nash 

asserts that the contact was horseplay and a form of discipline, but agrees that it was 

inappropriate   in   retrospect.     Four   affidavits  from   boys   on   the   trips   describe   Nash's 

conduct.   It involved tickling the boys, having them do calisthenics in their underwear, 

spanking them, and receiving foot and neck massages from them.  The affidavits are not 

strictly condemnatory though.  The affidavit discussing tickling hedged its assessment: 

"Father Nash never touched my genital area, and did not engage in other sexual activity 

with me.  He also never told me not to mention the tickling to others, and he might not 

have realized that there was something wrong about it."                 And six other affidavits or 

letters from participants indicated that no improper activity was observed on the trips, nor 

was discomfort felt. 

                Admitting   to   the   acts   and   their   inappropriateness,   Nash   stated   that   the 

discipline was of the kind he had received as a child at Catholic summer camp. A Juneau 

teacher who worked with youth at the time of Nash's actions stated that it was then 

common to discipline children in such a manner.  The church looked into the matter and 

concluded that the behavior was "horse play."  Nash said the tickling was used in place 

of spanking. He claims that he did not receive any sexual gratification from the behavior, 

                                                   -3-                                             6585

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but now recognizes that it was inappropriate.  A letter from Nash's legal advocate within 

the church described the behavior as "immature attempts by a very young priest to 

maintain discipline among teenagers." 

                2.      Jemez Springs rehabilitation center 

                A 1989 complaint related to Nash's behavior put an end to his trips with 

youth, and resulted in Nash attending a New Mexico retreat and treatment center, Jemez 

Springs, from January to May of 1990.  Although Nash was never told the specifics of 

the 1989 complaint, based on counseling Nash received and his memory of the trips, 

Nash   asserts   that   the   complaint   pertained   to   conduct   along   the   lines   of   the   other 

allegations against him - tickling and massages.  He had just returned from a trip with 

youth   to   San   Francisco,   which   left   him  feeling   burnt-out   and   unable   to   control   the 

children with him.      Nash attempted to resign from the priesthood after the complaints, 

but instead the bishop recommended Nash seek counseling at Jemez Springs. 

                Nash went to Jemez Springs for a three-day evaluation.               The evaluation 

included interviews, psychological exams, and  physical examinations. Nash said he did 

not remember details from this 20-year-old evaluation, but said that he was not aware of 

any diagnosis of a psychological condition.           Rather, the results showed that he was "a 

physical and emotional wreck."  Bishop Michael Kenny of Juneau recommended Nash 

stay at the facility and take part in a five-month renewal program called "Foundation 

House."   Nash did so. 

                Father Liam Hoare is a Licensed Professional Clinical Counselor who was 

the director of Jemez Springs during the time Nash was there.                He did not remember 

Nash specifically, but based on the limited remaining documentation of Nash's time at 

Jemez Springs, Father Hoare testified about the programs Nash would have participated 

in, and the history and purpose of the facility generally. In the 1950s and '60s the facility 

                                                  -4-                                            6585

----------------------- Page 5-----------------------

did not offer counseling, and was more of a home for priests who could not function in 

society.   By the time Nash attended the facility, it had changed to essentially a medium- 

term   inpatient   counseling   facility.    Priests   came   to   the   facility   for   "stress-related 

disorders, personality disorders, mid-life crises, vocational crises, discernment issues 

regarding whether to remain in the priesthood or not . . . [as well as] [s]exuality issues, 

heterosexual      issues,   homosexual       issues,   human      sexuality    issues,   interpersonal 


                According to Nash, Jemez Springs had two facilities: one for priests facing 

allegations of sexual abuse, and another more general retreat.             Nash stated that he was 

at the latter facility.  Father Hoare stated that "burn-out" was the reason a lot of priests 

attended   Jemez   Springs.      The   five-month  holistic   renewal   program   in   which   Nash 

participated included emotional, psychological, spiritual, and physical components. One 

aspect   of   the   program   emphasized   diet   and   exercise.    The   counseling   components 

included individual and group therapy, art therapy, psychodrama, journal workshops, 

lectures, and meditation. 

                The facility kept reports of each participant's progress, but no reports on 

Nash are still available.       Only a cover letter exists, and consistent with the facility's 

confidentiality policy, the cover letter asks the holder of the report to destroy the report 

after reading it. The facility itself kept a copy, but closed in 1995, and ultimately the new 

administration   that   later   took   over   destroyed   all   old   reports   in   2003. When   Nash 

requested the records, the facility rebuffed or denied his request.              Nash expected the 

documents to come up in later litigation, and was willing to have that happen, but the 

records were gone by the time they were requested.              Nash stated that Bishop Michael 

Kenny, who was then the bishop of Juneau, had destroyed the local diocese's copy, 

consistent with the requirements of the cover letter.             However, contrary to that, one 

                                                  -5-                                            6585

----------------------- Page 6-----------------------

affidavit in the record implied that Nash destroyed the Juneau Diocese's copy of the 

records.      The   affidavit  was    introduced    into  the  record   by   Nash,   because    it  was 

background material used in a recent psychiatric exam of Nash.  The affidavit is from a 

church employee who stated that in 1995 Nash had private access to the Diocese's files 

and an office shredder, and that she (the church employee) noticed manilla envelopes 

containing the reports go missing at that time. 

                One way or another, the reports of Nash's time at Jemez Springs were 

destroyed.   However, there is evidence supporting Nash's contention that his treatment 

addressed burn-out, not pedophilia.   Father Hoare's testimony indicated burn-out was a 

common reason priests would attend the facility.             Also, the bishop allegedly wrote in 

Nash's personnel file that Nash was at Jemez Springs "for himself & not because he had 

ever molested anyone" and made other consistent remarks. A letter from the Archbishop 

Emeritus      of  Anchorage      confirms,    with   personal   knowledge,      that  Bishop    Kenny 

considered   Nash   to   be   "OK"   after   Jemez  Springs   and   returned   Nash   to   his   prior 

assignment.  And Juneau's later bishop, Bishop Warfel, testified that when he took over 

as bishop in Juneau in the 1990s, his impression, based on discussions with Nash and 

other church officials, was that the allegations against Nash concerned little more than 

"horse play" and that Nash was at Jemez Springs for issues like burn-out and depression. 

                Following his five months at Jemez Springs, Nash returned to working as 

a   priest   in   Southeast   Alaska.  Father   Hoare   stated   that   Jemez   Springs   aggressively 

followed all government reporting requirements and would not have recommended a 

priest return to his regular position if the facility's staff felt the priest constituted a risk 

to either adults or children. 

                Nash concluded that his conduct "crossed appropriate pastoral boundaries," 

and he resolved to "limit [his] contact with young people and not to do it again."                 The 

                                                  -6-                                            6585

----------------------- Page 7-----------------------

record does not include any allegations that Nash's   conduct   was   improper   after   his 

departure from Jemez Springs. 

                3.      Sexual abuse allegation 

                In 1992 "J.P." or his father alleged that Nash had sexually abused J.P. when 

J.P. was a minor.      Nash testified that he immediately denied the allegation, and that 

Bishop Kenny investigated the matter and found it not credible. It appears the complaint 

in 1992 was vague and did not allege any specific instances of abuse. 

                In 2002 J.P. came forward with renewed rape accusations against Nash 

covering the period from 1979 to 1982, when J.P. was a young boy.                     J.P. alleged an 

extended pattern of sexually assaultive conduct over three years during which Nash 

isolated J.P. on trips (or even sometimes in Juneau). 

                J.P.'s allegations were made in writing but unsigned and undated.  It does 

not appear that he was ever under oath when making the allegations. J.P. read a prepared 

statement to a church board reviewing the charges, but there was no opportunity for cross 


                Nash denied (and continues to deny) J.P.'s allegations.             He submitted an 

affidavit   stating   that   he   "would   not   have   done   and did   not   do  the   things   that   [J.P.] 

alleges . . . ."   (Emphasis in original.)  Nash noted that the Juneau newspaper reported 

that J.P. said that he had had no memory of the sexual assaults until three years before 

coming   forward,   almost   20   years   after  they   allegedly   took   place.      Further,   Nash 
submitted aircraft logs contradicting some of J.P.'s allegations.2  Nash's aircraft evidence 

        2       J.P. alleged that "[b]etween the fall of 1979 and the spring of 1980 I had 

taken approximately 10 trips in the floatplane with Father Mike [Nash] and on each of 
these trips I was alone and was molested by Father Mike."  Nash submitted mechanical 
logs showing that the plane to which Nash had access (the Diocese's plane) was not 

                                                  -7-                                               6585 

----------------------- Page 8-----------------------

was later confirmed by testimony from a retired Federal Aviation Administration safety 


               J.P.'s allegations were turned over to Alaska Special Assistant Attorney 

General Richard Svobodny, who declined to prosecute Nash. 

               4.     Investigations and Nash's departure from priesthood 

               After the J.P. allegation, Bishop Warfel, then bishop of Juneau, ordered an 

investigation.    It included, in 2003, a comprehensive report to Warfel, made by the 

Diocese of Juneau Review Board for the Protection of Children and Young People.  The 

review board considered a rich record, which now forms the starting point for the record 

before   this  court.  Also,   the  review   board  apparently   had  access   to  confidential 

documents, including a police report not part of the record before this court. 

               The review board found J.P.'s statement to be the only evidence of sexual 

assault, and noted that Nash had called that statement into question with contradictory 

evidence.    Accordingly, the review board recommended no action be taken on J.P.'s 

allegation at that time. Similarly, regarding the affidavit suggesting that Nash destroyed 

files, the review board found that although the affidavit was credible, Nash presented 

evidence calling the affidavit into question.      The review board thus presumed Nash 

innocent of the alleged misconduct.     However, regarding the older tickling and similar 

behavior (from 13 to 23 years prior and admitted to by Nash) the review board found the 

behavior to constitute sexual abuse of minors - and that Nash's intent was "relatively 

       2       (...continued) 

configured as a float plane at that time, but rather had wheels.       In the event J.P. was 
mistaken about the year, or in the event another plane could have been used, Nash 
provided evidence that neither the Diocese's plane nor any other Juneau plane was in 
floatplane configuration during the winters, since the Juneau landing pond is frozen in 
the winter. 

                                              -8-                                        6585

----------------------- Page 9-----------------------

unimportant."  One of the review board's more detailed recommendations was that the 

bishop and Nash negotiate an agreement whereby Nash would voluntarily request a 

"dispensation" from the priesthood. 

                The   above   investigation   and   report   were   conducted   under   "pontifical 

secret."    This appears to have prohibited Nash from independently investigating the 

merits of the allegations against him.          Similarly, while Nash was allowed to answer 

questions from the church's review board, he was not able to present a case or cross- 

examine witnesses. Only after the review board and bishop reached their conclusion did 

a   canonical   advocate   -   the   church's   version   of   legal   representation   -   present   the 

Vatican with a brief defending Nash. 

                About a year after the review board's 2003 report, the church's governance 

granted the bishop permission to negotiate Nash's resignation. From 2004 to 2005 Nash 

and   Bishop   Warfel   negotiated   Nash's   resignation   in   exchange   for   Nash   receiving 

retirement pay, severance pay, and medical benefits, and a waiver by both sides of any 

claims against the other. 

                5.      Conflicts after Nash's resignation request 

                Complying   with   the   settlement,   Nash   wrote   the   Vatican   in   May   2005 

requesting to be relieved from his vows of priesthood.              The Vatican responded with a 

Latin decree (and English translation) that may have granted Nash's request, or may have 

fired    him.   The     English    version    of  the  decree    used   the  terms    "dismissal"     and 

"dispensation."   Nash claims the Vatican simply accepted his request for resignation - 

a view supported by a separate assessment by the dean of Nash's law school, Creighton 
University (a school "rooted in the Catholic tradition"3).               Later negotiations between 

        3       Creighton University, About Creighton, 


                                                   -9-                                               6585 

----------------------- Page 10-----------------------

Bishop Warfel and Nash led to an agreement condoning the following explanation, stated 

from Nash's perspective: "I voluntarily requested the Holy See to return me to the status 

of a layperson.     This request was granted by Pope Benedict XVI in November 2005." 

That statement was drafted by the church, not Nash. 

                The   need   to   clarify   the   meaning  of   the   proclamation   later   came   about 

because Nash filed a defamation suit against J.P. based on J.P.'s rape accusation.                  The 

Diocese of Juneau paid for J.P.'s defense in that suit.            The result was an October 26, 

2006,   settlement   between   Nash   and   Bishop   Warfel   of   Juneau,   in   which   the   parties 

stipulated how they would characterize the accusations against Nash and his departure 
from   the   priesthood.4     One   such   characterization   was   the   explanation   quoted   in   the 

previous paragraph about Nash's departure. In other stipulated language, Bishop Warfel 

stated that Nash "has never been found .  .   . to have committed any sexual assault upon 

J.P."; that Nash produced evidence of "unquestioned authenticity" contradicting J.P.'s 

claims; that the allegations were "insufficiently probable" to warrant further church 

actions;   and   that   neither   Bishop   Warfel   nor   the   Diocese   of   Juneau   opposed   Nash's 

application to the bar.   For his part, Nash wrote a letter of apology for his inappropriate 

attempts at discipline and wrote a statement discussing his actions. 

                In 2007, following his admission to the Iowa Bar, the Juneau Empire ran 

a story, "Court rules former priest can take bar exam, despite allegations."               Writing an 

op-ed in response to the story, Nash used some of the above language.                   Although the 

language had been agreed upon, its use led to a spat between Bishop Warfel and Nash. 

        3       (...continued) 

(last visited June 21, 2011). 

        4       Nash claimed Bishop Warfel threatened Nash with excommunication if 

Nash would not settle the defamation claim against J.P., and that this was a motivation 
for Nash to withdraw. 

                                                  -10-                                            6585

----------------------- Page 11-----------------------

Bishop Warfel wrote Nash to protest Nash's use of Bishop Warfel's settlement statement, 

as well as Nash's public characterization of the Vatican's action as accepting Nash's 

resignation.   Bishop Warfel continues to believe Nash has incorrectly characterized his 
departure from the priesthood.5 

        C.       Proceedings 

                 1.      Iowa Bar and Iowa Supreme Court 

                 Nash graduated from Creighton Law School in the spring of 2006.  Nash 

applied to sit for the Iowa Bar, where he was initially denied.                 Thus began a series of 

probes into Nash's background, first in Iowa and now in Alaska. 

                 As part of the Iowa process, a 2006 psychiatric exam of Nash concluded as 


                 I   find   no    evidence     that   Mr.    Nash    suffers    from    any 
                 diagnosable psychiatric disorder of any sort.            Further, I find 
                 no evidence that Mr.          Nash presents a risk of perpetrating 
                 abuse   of   any   type   upon   any   individual,   minor   or   adult. 
                 Finally,   I   find   no   evidence   that   Mr.   Nash   possesses   any 
                 mental disorder or personality traits which would, in any way, 
                 impair his ability to maintain the moral character and honesty 
                                                     [  ] 
                 expected of an Iowa Lawyer. 6 

        5        Bishop Warfel's indignation is puzzling since Nash used language Bishop 

Warfel authorized in a manner authorized by the settlement. Indeed, testifying before the 
Alaska Hearing Master, Bishop Warfel had difficulty pointing to what, exactly, Nash had 
stated incorrectly.      And, by the time of the bar inquiry, Bishop Warfel was a bishop in 
Montana, not Alaska - although the contract between Bishop Warfel and Nash called 
for   only   the   bishop   of Juneau   to   respond   to   questions   from   the   bar.    Further,   the 
settlement between Nash and Bishop Warfel clearly stated that neither the church nor 
Bishop Warfel opposed Nash's application to the bar. 

        6        In re Nash, 739 N.W.2d 71, 74 (Iowa 2007). 

                                                    -11-                                              6585

----------------------- Page 12-----------------------

In addition to the exam and a subsequent test to assess Nash's honesty during the exam, 

the psychiatrist reviewed a thick file of background information on Nash, all of which 

is now in the record before this court. 

                As further evidence of his character, Nash submitted to the Iowa Bar nearly 
80 letters of recommendation.7          Forty-seven letters were submitted to the Alaska Bar. 

These letters are compelling.         It appears that Nash has been forthright regarding the 

allegations against him, because most of the letters discuss the sexual abuse allegations, 

and proceed to document Nash's character comprehensively.                   The letters are generally 

impressive in their breadth and depth, and on the whole appear genuinely personal and 

reflective.   Several people with lifelong ties to Nash speak to his trustworthiness and 

integrity, as do many who have known Nash only during his law career.                     They present 

a thoughtful, caring portrait of Nash. 

                The following are representative of the letters recommending Nash to the 

bar.    Francis Hurley, the Archbishop Emeritus of Anchorage and a former bishop of 

Juneau,   was   supportive   of   Nash's   bar   application   and   wrote   as   a   family   friend,   a 

supervisor,   and   a   church   official   -   perhaps   the   only   person   presenting   first-hand 

knowledge of Nash's early years as a priest.            Patrick Borchers, dean of Creighton Law 

School,   was   familiar   with   law   and   the   church,   and   his   professional   responsibility 

included giving references to students so that they may sit for the bar.  He discussed the 

credibility of    J.P.'s allegations, the nature of the Diocese of Juneau's settlement with 

J.P., Nash's departure from the priesthood, and Nash's admitted-to acts, and concluded 

by supporting Nash's application to the Iowa Bar. Notably, in addition to being someone 

with experience making moral-character recommendations, Borchers demonstrated an 

informed perspective on child abuse and the church.               Reverend Mark Henslee worked 

        7       Id. 

                                                  -12-                                                6585 

----------------------- Page 13-----------------------

with Nash as a pastor in Southeast Alaska in the 1990s, and attested to the "high moral 

character,    integrity,  and   maintenance     of appropriate     boundaries"     Nash   displayed. 

Patricia Douglass of the Alaska Public Defender Agency, where Nash worked in the 

summer of 2005, spoke to his conscientiousness and responsible habits practicing law, 

his effective work with the community, and his dedication.              And Ronald Volkmer, a 

professor at Creighton, made a persuasive argument that "[u]ntil a fact-finding body 

accords Michael Nash due process of law in regard to these charges" Nash should be 

presumed innocent according to "fundamental notions of fairness." 

                As noted above, Nash's application to the Iowa Bar was originally rejected. 

Nash then requested a hearing before the Iowa Board of Bar Examiners.                 Much of the 

evidence noted above was addressed before the board.                Upon considering all of the 

evidence, the board was evenly split:          Three members favored Nash's admission and 

three opposed it.     Under Iowa law, the split vote affirmed the earlier decision denying 

Nash's application. 

                Nash then appealed to the Iowa Supreme Court. As in Alaska, an applicant 

for admission to the Iowa Bar bears the burden of showing his or her fitness to practice 
law.8  Also as in Alaska, the board makes the initial determination of fitness to practice 

law but the supreme court exercises final authority in the matter.9           Upon review of the 

entire record, the Supreme Court of Iowa concluded: 

                       We have a duty to the citizens of Iowa to ensure the 
                practice of law is reserved for individuals who will respect 
                the   trust  inherent  in  the  lawyer-client    relationship.    We 
                conclude   Michael   Nash   has   established   by   a   convincing 
                preponderance   of   the   evidence   he   possesses   the   requisite 

        8      Id. at 74. 

        9      Id. 

                                                -13-                                             6585 

----------------------- Page 14-----------------------

                moral character and fitness for admission to the Iowa bar. 
                We   therefore   grant   his   application   to   take   the   Iowa   bar 

                2.      Alaska administrative hearing 

                Nash then applied to the Alaska Bar, which held a hearing to consider 

Nash's character and fitness.  Mary K. Hughes was appointed as hearing master by the 

Alaska Bar.      The taking of testimony consumed two full days; 14 witnesses testified. 

Following the hearing, Hughes issued her decision.               She concluded that Nash met the 
standards for admission to the Alaska Bar.11 

                The hearing master began by noting that the standard for character and 

fitness,   set  forth   in  Alaska    Bar   Rule   2(1)(d),   is  that  each   general    applicant   for 

examination shall "[b]e one whose conduct justifies the trust of clients, adversaries, 

courts   and   others   with   respect   to   the   professional   duties   owed   to   them.   Conduct 

manifesting      a  significant   deficiency     in  the  honesty,    trustworthiness,     diligence   or 

reliability of an applicant is a basis for denial of admission."  She also noted that "Nash 

has the burden of demonstrating character and fitness to practice." 

        10      Id. at 76. 

        11      As the dissent notes, below at 40-41, the hearing master's decision contains 

the statement that "Nash's lack of memory re: the evaluation is not credible and it is 
unfortunate that the records are not existent."  As we note below, however, Nash offered 
substantial testimony as to the evaluations he underwent, see below at 20-24, and a 
careful examination of Nash's testimony in the context of the full record shows that the 
Board's decision misstated the record and leads to the conclusions that (a) it is not clear 
that there was a discharge report, and (b) if such a report existed, there is no evidence that 
Nash ever saw it or denied knowledge of it.             Moreover, to the extent that the Board's 
misstatement rests on the hearing officer's finding, the finding is problematic for the 
reasons   we   discuss   in   our   review   of   the   Board's   conclusion,   including   that   Nash 
"discussed the evaluation comprehensively, denied any diagnosis of a psychological 
disorder, gave information corroborating his statements," and the like. Id. at 21.   Under 
these circumstances, we give less weight to the hearing officer's finding on this point. 

                                                  -14-                                               6585 

----------------------- Page 15-----------------------

                The hearing included extensive testimony from Nash and Bishop Warfel, 

as well as the testimony of witnesses who had known Nash through the span of his 

lifetime.   For example, Mary Jane Cahail, 70 at the time of her testimony, had known 

Nash     since  Nash's    infancy;    recently   the two    volunteered     at  a  legal  clinic.  She 

recommended him as credible, conscientious, and honest.  Stephen Schneider, of Friday 

Harbor, Washington was a friend of Nash's starting in Nash's young adulthood and 

hosted Nash and youths when Nash's trips from Alaska came through Washington. 

Schneider found Nash's behavior with children completely appropriate, and entrusted 

Nash with Schneider's own children.   Lee Urban, a law school friend of Nash, testified 

to Nash's recent character, recommending him to the bar "without any reluctance or any 

pre condition." 

                The Alaska hearing record also contained 47 of the letters submitted in the 

Iowa      proceeding,     and    five   specific    Alaska    recommendations,         all  uniformly 

recommending Nash.         Nash's own testimony in Alaska was extensive, and concluded 

with the Alaska Bar Counsel thanking Nash for his candor.                 At the conclusion of the 

proceeding, Hearing Master Hughes said to the participants: 

                        I want to thank both counsel, and Mr. Nash.   You have 
                been   very,   very   professional.   .   .   . I   can   tell   you   that   the 
                professionalism seen here today, is not seen normally at these 
                types    of   hearings.     And,    unfortunately,     I  have    some 
                experience in these, and thank you both counsel.              Mr. Van 
                Goor,   Mr.   McCormick,   and   Mr.   Nash,   thank   you.      Your 
                respect for each other and your professionalism is so much 

                As noted above, following the end of the hearing, Hearing Master Hughes 

concluded that Nash met the character and fitness requirements of the Alaska Bar. 

                                                 -15-                                            6585

----------------------- Page 16-----------------------

                3.      Board of Governors of the Alaska Bar Association 

                The Board of Governors of the Alaska Bar Association held a brief hearing 

on October 30, 2008.         During the Board's hearing, Nash's attorney Mark McCormick 

presented an opening statement and board members proceeded to ask several questions. 

There were several questions about the destruction of the Jemez Springs records. While 

noting   that   the   affidavit   on   that   matter   was   not   addressed   in   the   hearing   below, 

McCormick nonetheless addressed the affidavit, pointing out the relevant evidence in the 

record rebutting it.   The Board then pressed McCormick about details from Nash's time 

at   Jemez   Springs.    McCormick   twice   suggested   the   Board   directly   ask   Nash,   who 

participated telephonically, but the Board never acted on that offer.  One board member 

asked   about   Jemez   Springs:       "Isn't   it   true   that   that   was   a   treatment   program   for 

clergymen   who   molested   minors?"   and   "Isn't   that   the   reason   that   Father   Nash   was 

there?"   There were a few other questions, then board members concluded the hearing. 

                After the Board's hearing, Nash filed a recusal notice, suggesting that a 

board member who had questioned him about Jemez Springs should disqualify himself 

because his law partner represented J.P. in J.P.'s sexual misconduct allegations against 

Nash.   The Board did not disqualify this board member. 

                Instead, the Board issued a decision on January 9, 2009, denying Nash's bar 

application.     The Board considered three areas of concern - only the last sufficient to 

deny Nash's application.          First, weighing the allegations of sexual misconduct from 

approximately       25   years   prior,  the  Board    found    the  allegations    unsupported     by   a 

preponderance of the evidence. Second, addressing whether Nash had destroyed evidence 

in church files, the Board found the allegation serious but probably not dispositive on its 

own.   Third, looking to candor, the Board felt that Nash was untruthfully incomplete in 

responding to questions about Jemez Springs, which merited denying Nash's application. 

Board members had learned from old press reports that Jemez Springs had unsuccessfully 

                                                  -16-                                             6585

----------------------- Page 17-----------------------

treated   some   priests   with   sexual   disorders,   and   they   were   not   satisfied   with   Nash's 

explanation that he went there for burn-out and more holistic treatment. 

                Nash appeals the Board's decision.  He alleges multiple misstatements of 

the record and multiple violations of Alaska Bar Rules, which govern such proceedings. 


                The Supreme Court of Alaska has final power and authority to determine 
the standards for admission to the practice of law in Alaska.12  Accordingly, when a bar 

applicant   appeals   a   decision   of   the   Board  of   Governors,   we have   the   authority   and 
obligation to independently review the Board's decision.13 

                Because we generally delegate responsibility to the Board to determine bar 

admission, we give its decisions deference and ordinarily do not disturb the Board's 

findings of fact if the Board is in a position to weigh the credibility of a witness or 
conflicting evidence.14     Nonetheless, our independent review has full latitude to depart 

from the Board's recommendations or conclusions - even absent error - and we do not 

        12      Sullivan v. Alaska Bar Ass'n, 551 P.2d 531, 533 (Alaska 1976). 

        13      See   id.; accord   In   re   Application   of   Obermeyer,   Mem.   Op.   &   J.,   No. 

S-9002,   2000 WL 34545818, at *2 (Alaska, August 23, 2000); In re Green-Armstrong, 
Mem. Op. & J., No. S-9327, 2001 WL 34818215, at *1 (Alaska, March 28, 2001); see 
also In re Simpson, 645 P.2d 1223, 1226-27 (Alaska 1982) (establishing independent 
review for disciplinary actions, based on this court's ultimate responsibility to discipline 
attorneys); In re Hanson, 532 P.2d 303, 309 (Alaska 1975) (establishing independent 
review for decisions of the Commission on Judicial Qualifications, based on this court's 
ultimate responsibility to discipline judges). 

        14      See In re Simpson, 645 P.2d at 1226-27 (disciplinary proceeding);Sullivan, 

551 P.2d at 534; see also In re Disciplinary Matter Involving Brion, 212 P.3d 748, 
751(Alaska 2009); In re Disciplinary Matter of Friedman, 23 P.3d 620, 625 (Alaska 

                                                 -17-                                            6585

----------------------- Page 18-----------------------

necessarily extend our deference to findings where the Board was not in a position to 
weigh either the credibility of witnesses or conflicting evidence.15 


                Nash appeals the Board's decision denying his application.  He claims that 

the decision was inappropriately based on hearsay evidence and information outside the 

record, and that the decision misstated the record.           He additionally claims that board 

members should have disqualified themselves from the process, and that the proceedings 

denied   him   due   process.    In   addition   to   raising   errors,   Nash   asks   us   to   apply   our 

independent judgment and grant his application to the bar. 

                We agree that the Board's decision misstated the record.  Specifically, the 

sole dispositive finding against Nash - his alleged lack of candor - was based on 

factual assertions having no basis in the record.  Accordingly, we set aside that finding, 

and we do not find evidence that Nash was untruthful.  Further, we consider the Board's 

concern regarding evidence destruction, and do not find sufficient evidence to support 

the concern.   Finally, applying our independent judgment to the extensive record before 

us, we find that Nash meets the moral character requirements set forth in Bar Rule 2, 

section 1(d). 

        A.	     The Board's Decision Misstated The Record When Finding Nash To 
                Be Untruthful. 

                Denying Nash's application, the decision homed in on Nash's "inexplicable 

lack of recollection about the treatment he received [at Jemez Springs] or the contents of 

[its] report."   The decision found Nash had given misleading answers and therefore 

lacked candor.       As support to show that Nash was not telling the truth about Jemez 

Springs,   the   decision   pointed   to   a   statement   by   Nash's   attorney,   asserting   that   the 

        15      See In re Simpson, 645 P.2d at 1226-27; Sullivan, 551 P.2d at 533. 

                                                 -18-                                              6585 

----------------------- Page 19-----------------------

attorney   admitted   "that   the   facility   was   notorious   as   a   treatment   facility   for   priests 

suffering from sexual disorders."         Further, the decision stated that it was "well-known 

to several Board members from reports in the press" that "[t]he facility has been widely 

criticized as ineffectively returning priests  suffering from sexual disorders to active 

clerical duties."   The Board summed up its decision in this way: 

                It   is  uncontested    that   Mr.   Nash   received    a  report   upon 
                discharge from the facility.        It is also uncontested that the 
                report   was   destroyed.      This  report   effectively   ended   Mr. 
                Nash's pastoral career.        However, neither Mr. Nash, nor his 
                counsel, claims to have any clue as to the report's contents, 
                conclusions, or recommendations.           This lack of recollection 
                lacks credibility and appears to be a deliberate, material lack 
                of candor with this tribunal.       It is impossible to fathom that 
                Mr. Nash cannot even generally recall the contents of such a 
                report.   It derailed a decadal pastoral career.   At a minimum, 
                Mr. Nash would recall the general contents of the report. The 
                report was too vital to Mr. Nash's pastoral career to credibly 
                claim its contents were "forgotten." 

The Board stated that this alleged lack of candor was the "most serious concern" and the 

"key issue" regarding Nash's application. 

                However, those assertions are simply not supported by the record.                  Most 

notably, it is not clear there was any such thing as a discharge report that contained final 

results.   And if such final results existed, there is no evidence that Nash reviewed such 

a report or denied knowledge of it.  The Board's confusion may stem from the multiple 

reports.    Before attending the program at Jemez Springs, Nash underwent an intake 

evaluation. Then, while Nash attended Jemez Springs, the facility prepared four progress 

reports. Although the record does not show that a comprehensive "discharge report" was 

ever prepared, the fourth progress report came at the end of Nash's time at Jemez Springs 

                                                  -19-                                             6585

----------------------- Page 20-----------------------

and may have been considered a final report, although there is no evidence it summarized 

Nash's progress more comprehensively than the other reports. 

                Assuming the Board's discussion of a "discharge report" referred to the 

fourth   report,   there   is   no   evidence   supporting   the   assertion   that   Nash   received   and 

reviewed that report.   And it is not true that Nash claimed no knowledge of such a report 

- rather, it does not appear Nash was ever questioned on the subject.                    Indeed, at oral 

argument   Bar   Counsel   could   not   point   to   a   single   piece   of   evidence   in   the   record 

supporting the Board's assertion that Nash received a discharge report, or was questioned 
about   the   contents   of   one.16   This   mistake   is   extremely   prejudicial,   since   Nash's 

purported failure to remember the purported discharge report was the basis for finding 

that Nash lacks candor. 

                The Board's misstatement may stem from a finding by the hearing master, 

who found that Nash's lack of memory about the Jemez Springs "evaluation" was not 

credible.     The Board's use of this finding is problematic for several reasons.                   First, 

assuming the hearing master was correctly referring to the intake evaluation, the Board's 

confusion between that and a discharge report is not harmless.  That is, it is not clear that 

the Board could have come to the same conclusion had it known its finding was based 

on Nash's memory of a preliminary intake evaluation, and not, as it believed, on Nash's 

failure to remember the contents of a comprehensive discharge report which would 

contain final results from Nash's five months at Jemez Springs.                   Indeed, the hearing 

master   did   not   find   that   Nash's   lack   of memory   warranted   denying   his   application. 

Second, it is not clear that the hearing master herself was aware of the differing intake 

evaluation and progress reports. She referenced Nash's testimony about an "evaluation," 

        16      At one point, Nash indicated that he was prepared to consent to the release 

of records from Jemez Springs, but he was not asked to do so. 

                                                   -20-                                               6585 

----------------------- Page 21-----------------------

but then referred to testimony about all of the Jemez Springs records being destroyed, 

and never mentioned the progress reports that the Board may have intended to reference. 

Third, even ignoring the above two problems, and assuming the failed memory issue 

refers to Nash's recollection of the intake evaluation, there is no evidence supporting the 

Board's contention that Nash "claims to have [no] clue" about that report, or "cannot 

even generally recall the contents."   Bar Counsel conceded this at oral argument before 


                Regarding an intake evaluation that occurred eighteen years prior - at a 

time when Nash claims to have been depressed and burnt-out - we find his responses 

to be appropriate. Contrary to the Board's statements, Nash testified extensively. While 

he did not remember results from certain specific exams, he discussed the evaluation 

comprehensively, denied any diagnosis of a psychological disorder, gave information 

corroborating   his   statements,   and   attested that   the   general   result   showed   he   was   an 

"emotional wreck" who would benefit from the Jemez Springs program. On direct exam 

by his own attorney, he testified as follows: 

                Q:	     What did you understand you would be evaluated for? 
                A:	     It was a - to be a broad based evaluation, including 
                        psychological, physical, medical, spiritual, emotional 
                        evaluation.   Frankly, I was something of a wreck right 
                        at that time. 
                        . . . . 
                Q:	     How long did it take? 
                A:	     It was about three days. 
                Q:	     And what was the nature of the evaluation? 
                A: 	    It included interviews and - let me start over.             We 
                        were   asked   to   complete   a   number   of   psychological 
                        written examinations similar to the MMPI.             I do not 
                        remember all of them.       We were evaluated for our - 
                        we were asked to complete an evaluation for IQ.             We 
                        were asked to spend time with a medical doctor who 
                        gave us a complete thorough physical examination, 

                                                  -21-	                                           6585

----------------------- Page 22-----------------------

                         including a treadmill test, or gave me, at least.            I was 
                         asked     to   spend    time   with    a  spiritual   director    to 
                         evaluate my particular spiritual depth and needs at the 
                         time.      Was     there   one   more     component?        I   was 
                         interviewed about my social interactions and activities. 
                         . . . . 
                 Q:	     Were you given the results of the evaluation? 
                 A:       I was. 
                 Q:       What were the results? 
                 A:       I   don't   remember.      I'm   sorry.    I   know   it   sounds 
                         evasive,   but   there   was   -   ultimately,   there   was   a 
                         recommendation           that  I   participate    in   a  renewal 
                         program      offered    by   the   Paraclete    Fathers    at  their 
                         facility, what they called "Foundation House." 
                 Q:	     And you said you felt you were a wreck at the time, is 
                         that correct? 
                 A:	     Yes. 
                         . . . . 
                 Q: 	    Now, did you discuss with Bishop Kenny the results of 
                         the evaluation that you had had? 
                 A:	     Well,     the  results   were    forwarded     to  him,    and   we 
                         discussed      the   wisdom      of  my    trying    the  renewal 
                         program. . . . 
                 Q:	     Was it your decision to go [to Jemez Springs], or was 
                         it Bishop Kenny's? 
                 A:	     It was my decision to go. 
                 Q:	     Why did you decide that you would go? 
                 A:	     He   persuaded   me   that   I   should   give   the   priesthood 
                         another chance, and the results, I think, showed that I 
                         was a physical and emotional wreck. 

Cross-examination was similar: 

                 Q:	     In the evaluation process, you indicated that there were 
                         a number of evaluations that were conducted.                  Was 
                         one     of   those    a   psychiatric     or   a   psychological 
                 A:	     Yes. 
                 Q:	     Were      you    informed      of   the   results    of   either   a 
                         psychiatric or a psychological evaluation? 

                                                    -22-	                                              6585

----------------------- Page 23-----------------------

                 A:       I got a packet this thick of the results of the various 
                         exams.  I'm not sure that that was in there. 
                         . . . . 
                 Q:       Do    you     have    a   recollection      of   the   type    of 
                         psychological tests that you were given at the Servants 
                         of the Paraclete? 
                         . . . . 
                 A:       Quite a wide battery.       The MMPI, a - I think there 
                         were four psychological tests of the type where you 
                         answer      questions    of   one  sort    or  another,    and    a 
                 Q:      Do you recall the results of any of those tests? 
                 A:      No.   I'm sorry. 
                 Q:      Did any of those tests reflect a personality disorder? 
                 A:      Not    to   my    knowledge.         I  think   I  might     have 
                         remember[ed] . . . 
                 Q:      Any psychological diagnosis, such as might be found 
                         in DSM-IV? 
                 A:      Not to my knowledge. 
                 Q:      Specifically,   Mr.   Nash,   in   this   evaluation   process, 
                         were you tested for tendencies toward pedophilia? 
                 A:      I think so.   I think the Rorschach was . . . 
                 Q:      I mispronounced that.        Pedophilia is what I meant to 
                         - how I meant to pronounce it. 
                 A:      I know what you mean. 
                 Q:      Were there any physical tests for pedophilia that were 
                         administered to you . . . ? 
                 A:      No. 

While the examination of Nash could have been more effective, we do not find his 

answers particularly evasive, and they certainly cannot be described as the wholesale 

"lack of recollection" upon which the Board denied Nash's application. 

                 The evidence does not establish that Nash is feigning forgetfulness of a 

diagnosis.      If   one   assumes   that   the   report   contained   a   specific   diagnosis,   such   as 

pedophilia, Nash presumably could not forget such a conclusion. But Nash clearly stated 

that he believes the tests did not point to a specific diagnosis of a personality disorder, 

                                                   -23-                                              6585

----------------------- Page 24-----------------------

or any other diagnosis that might be found in the DSM-IV.                 Indeed, the testimony is 

ambiguous as to whether Nash even received the results of each specific test, and does 

not demonstrate that the tests were of a kind that produces a specific, quotable "result." 

And even if the results from any of the tests were in the stack of psychological reports 

Nash received, it is unremarkable that the  results phrased in the technical jargon of 

psychological testing would not produce memorable conclusions for a lay person 18 

years   later.    This   comports   with   Nash's   memory,   18   years   later,   that   the   results 

recommended he take part in the Jemez Springs program, and generally concluded that 

Nash was "a physical and emotional wreck."  Based on the bishop's encouragement of 

Nash to continue as a priest, and Father Hoare's assertion that priests attended the center 

for burn-out, there is simply no evidence to suggest that the evaluation resulted in a 

memorable, specific diagnosis of a mental disorder which Nash now pretends to forget. 

                The Board's decision contains further mischaracterizations.  The decision 

found it "impossible to fathom" that Nash could not remember the details of the alleged 

discharge report, because that report "derailed" Nash's career as a priest.  This is simply 

wrong.     Whether the decision was referring to Nash's intake evaluation, or one of the 

four progress reports, none of those derailed his career.  The reports corresponded with 

Nash's time at Jemez Springs, which was from January 1990 to May 1990.                     For the 15 

years after that Nash continued his career as a priest.  Nash's resignation was negotiated 

in 2005 after a Diocese report condemned only the tickling and foot massages to which 

Nash had already openly admitted. There is no evidence that the then 15-year-old Jemez 

Springs reports led to Nash's resignation, or had any role in it. 

                                                 -24-                                            6585

----------------------- Page 25-----------------------

                 The   Board's   decision   also   mischaracterized   the   statements   of   Nash's 
attorney, Mark McCormick.17  The decision stated: "Only upon pointed questioning did 

Mr. Nash's counsel finally admit that the facility was notorious as a treatment facility for 

priests suffering from sexual disorders."           Again, that is not true.      The exchange began 

with McCormick giving a lengthy description of the holistic programs at Jemez Springs, 

noting that Father Hoare, the former director, testified that the facility treated more 

routine issues such as burn-out.   McCormick was then questioned by the board member 

whose partner represented J.P.: 

                 Q:	     Isn't   it   true   that   that   was   a   treatment   program for 
                         clergymen who molested minors? 
                 A: 	    That was one - that was one thing that could be done 
                         there. . . . But Father Hoare made it very clear that it 
                         was in no way limited to that, that was just one of the 
                         things that it was appropriate to handle. 

        17       In   addition   to   mischaracterizing   McCormick's   statements,   the   decision 

asserted that the statements were lies, viewed them as attributable to Nash, and concluded 
accordingly that the lying was attributable to Nash.  As discussed in this section, we find 
no factual basis for the contention that McCormick lied - in fact, the decision never 
documented support for its allegation. 

                 Moreover, we find no support for the two legal bases on which the decision 
attributed McCormick's purported lies to Nash.  First, the decision cited Alaska Rule of 
Evidence 801(d)(2), which pertains to party admissions - but that rule  addresses only 
whether an attorney's statement is inadmissible hearsay, not whether it can be attributed 
to a client, let alone whether any illicit intention behind the statement can be attributed 
to the client.   Second, the decision cited Beaulieu v. Elliott, 434 P.2d 665, 669 (Alaska 
1967), to show that admissions of fact are binding on a client.                 But the Board notably 
omitted the portion of theBeaulieu quotation stating that admissions are binding only "if 
they are made with the express purpose of dispensing with the formal proof of some fact 
at   the   trial." Id.   With   knowledge   of  the   full   quotation, Beaulieu   does   not   support 
attributing McCormick's statement to Nash, let alone attributing McCormick's alleged 
intent.   It is also surprising for the decision to redact the statement in the manner it did, 
given that the decision focused on candor. 

                                                   -25-	                                             6585

----------------------- Page 26-----------------------

                         . . . . 
                 Q: 	    Isn't that the reason that Father Nash was there?               Or, 
                         do you deny that that was the reason? 
                 A: 	    We deny that was the issue that he was there for.  And 
                         Bishop   Kenny   made   a   note   that   did   surface   in   the 
                         evidence in this case, that that was not what [Nash] 
                         was there for. 

McCormick did not, under pointed questioning, admit that Jemez Springs was notorious 

for treating priests with sexual disorders, let alone indicate Nash had been there for that 


                 Instead     of  pointing    to  an   admission     by   Nash's     attorney,   the   above 

questioning demonstrates problems in the Board's analysis.                   Certainly it demonstrates 

        18       The Board's questioning is further troublesome because the board member 

was   the   subject   of   an   unsuccessful   recusal   request   filed   by   Nash   after   the   above 
questioning.       Nash requested that this board member disqualify himself because his 
partner represented J.P. in J.P.'s sexual misconduct case against Nash.  Alaska Bar Rule 
6, section 6, requires board members to "disqualify themselves and withdraw from any 
case in which they cannot accord a fair and impartial hearing," and Professional Conduct 
Rule 1.10 imputes an attorney's conflict across the attorney's entire firm. 

                 We have serious concerns about the impartiality of the decision in light of 
this conflict.  It is not difficult to draw a line from the board member's potential outside 
information to questions such as those above, which occurred during the board meeting 
and appear not to be based in the record.               Indeed, this line is rather apparent in the 
decision,   which   credits   factual   statements   about   Jemez   Springs   to   board   members' 
outside knowledge, including knowledge gained from newspaper reports. 

                 In a previous case, we concluded that "[a]n impartial tribunal is basic to a 
guarantee of due process. . . . When an administrative official has participated in the past 
in any advocacy capacity against the party in question, fundamental fairness is normally 
held to require that the former advocate take no part in rendering the decision." Matter 
of Robson, 575 P.2d 771, 774 (Alaska 1978).                   With   approval,  we cited the Second 
Circuit's requirement that administrative hearings should seek not only fairness, but also 
"the 'very appearance of complete fairness as well.' "Id. (quotingSimard v. Bd. of Educ. 
of Town of Groton, 473 F.2d 988, 993 (2d Cir. 1973)). 

                                                    -26-	                                             6585

----------------------- Page 27-----------------------

a disconnect from the record, which was replete with testimony that Nash attended Jemez 

Springs for more holistic concerns.  But more fundamentally the exchange, and the use 

of the exchange in the decision, demonstrates an attempt to show that Nash had lied by 

showing that he had attended Jemez Springs for pedophilia or sexual abuse.          This is 

problematic, because the decision had already concluded that a preponderance of the 

evidence did not support the allegations of sexual misconduct.      It points out the larger 

logical problem:  To conclude Nash was lying, the decision assumed that the reports had 

special significance, and that Nash had a reason to "forget" - essentially that he was 

hiding the reports' conclusion that Nash was a pedophile.        It is inconsistent for the 

decision to assume underlying sexual misconduct when the decision had already found 

that contention unsupported. 

              Without support in the record for such a contention, the decision reached 
to an "admission" by Nash's attorney,19 and even ambiguous "press reports" not in the 

record,20 to show that Jemez Springs treated priests with sexual disorders.  This type of 

analysis belies a conclusory slant that is contrary to the record.     Moreover, this is a 

poorly constructed argument as to Nash's alleged untruthfulness.  The fact that a portion 

of the facility treated priests with sexual disorders neither proves nor implies that Nash 

attended the facility for treatment of a sexual disorder.  And without pre-supposing that 

       19     See supra note 17 and accompanying text. 

       20     We note that reliance on the board members' memories of old press reports 

- memories that were never mentioned openly in court and which neither party has had 
the opportunity to review, rebut, or even know - raises serious due process concerns. 
See, e.g., City of Fairbanks v. Alaska Pub. Utils. Comm'n, 611 P.2d 493, 495 (Alaska 
1980) (holding that due process confines an agency to the record in order to (1) ensure 
accurate findings, (2) allow for rebuttal and cross examination, and (3) provide a basis 
for informed review). 

                                            -27-                                      6585

----------------------- Page 28-----------------------

Nash attended the facility for treatment of a sexual disorder, Nash's answers do not 

demonstrate the propensity for lying which the Board's decision attributes to him. 

                Notably, although denying Nash's application based on candor, the decision 

does not identify a single lie Nash told, nor any contradiction in his answers.  It instead 

appears to rely on Nash's demeanor in testimony that the Board did not hear.                     This is 

inexplicable, particularly because the Board declined to question Nash directly when it 

had the opportunity. 

                The Board concluded the issue of candor by asserting that since no records 

exist, Nash must be lying: 

                Mr.   Nash   is   likely   the   only   individual   alive   with   direct 
                knowledge and recall of the report's contents.            Under these 
                circumstances,   his   claimed   lack   of   memory   is   even   more 
                damning and incredible. . . .  The Board can come to no other 
                conclusion than there is something in the report that Mr. Nash 
                does not want the Board to learn. 

On the contrary, there are other conclusions that could be drawn - the most plausible 

being that the reports did not contain a memorable diagnosis of a psychological disorder. 

This is particularly plausible because Nash was willing to have the Jemez Springs reports 

introduced into the record before he learned that they had been destroyed. 

                Further, evidence in the record supports the contention that Nash attended 

Jemez Springs for more benign reasons - that is, he had asked to leave the priesthood 

because he was suffering burn-out and behaving or disciplining inappropriately - but 

not that he had received a diagnosis that he was a pedophile.  Father Hoare's testimony 

indicated that burn-out was a common reason priests would attend the facility.  Also, the 

bishop handwrote notes in Nash's personnel  file indicating that Nash was at Jemez 

Springs "for himself & not because he had ever molested anyone" and other consistent 

remarks.      A   letter   from   the   Archbishop   Emeritus   of   Anchorage,   based   on   personal 

                                                  -28-                                             6585

----------------------- Page 29-----------------------

knowledge, confirmed that then-Bishop Kenny of Juneau considered Nash to be "OK" 

after Jemez Springs and returned Nash to his prior assignment.                  And Juneau's later 

bishop, Bishop Warfel, testified that when he took over as bishop in Juneau in the mid- 

1990s, his impression, based on discussions with Nash and other church officials, was 

that the allegations against Nash concerned little more than "horse play" and that Nash 

was   at   Jemez   Springs   for   issues   like   burn-out   and   depression. Also,   Father   Hoare 

indicated that the facility would not have released a priest who posed a threat to the 

community.       Ultimately,   it   does   not   appear there   was   a   specific   diagnosis,   such   as 

pedophilia, made of Nash, and there is insufficient evidence to support the conclusion 

that Nash was untruthful by feigning not to remember such a diagnosis in the reports. 

                In   sum,   the   Board's   conclusion   that   Nash   lied   because   he   could   not 

remember a career-ending discharge report - when it is not certain that a discharge 

report ever existed, when it is not certain that Nash received it if it did exist, and when 

it is clear that any such report did not end his career - is simply not supported.  We set 

aside   that   conclusion   as   premised   on   misstatements   of   the   record.    Applying   our 

independent      judgment,     we   have   carefully   reviewed     the  record,   including    Nash's 

testimony regarding the intake evaluation and related evidence. Finding no evidence that 

there was a specific diagnosis, and no documented lies or conflicting testimony, we hold 

that Nash's alleged lack of memory as to specific results from 18-year-old psychological 

exams neither evidences a lack of candor nor justifies denying his bar application. 

        B.	     The Single Allegation Of Evidence Destruction Is Not Supported By 
                The     Record      And     Does    Not     Warrant      A    Negative     Character 

                The Board denied Nash's application based on the above candor issue. 

However, the decision also made a separate finding, suggesting that Nash had destroyed 

evidence.   Although the decision stated that this finding was probably insufficient alone 

                                                 -29-	                                           6585

----------------------- Page 30-----------------------

to deny Nash's application, we address it as part of our independent review.  We agree 

that   the   affidavit  concerning      evidence    destruction    is  insufficient   to  deny    Nash's 

application, and find further that it is not supported by the evidence. 

                This destruction of evidence claim is based on a church employee's 2003 

affidavit, which had been discussed in neither the hearing master's proceeding nor her 

report to the Board. The employee alleged that Nash had a key to church files and access 

to a paper shredder while he served as interim bishop during 1995, after Bishop Kenny's 

death.   The employee alleged the files had contained "recognizable" manilla envelopes 

earlier, and no longer contained those envelopes when Nash returned the key.                         The 

envelopes allegedly contained records from Nash's time at Jemez Springs. 

                The affidavit was part of the background material given to the psychiatrist 

evaluating Nash prior to his Iowa Bar admission.  The affidavit is in the record because, 

perhaps   more   indicative   of   candor   than   a  lack   of   candor,   Nash   turned   over   all   the 

background information to the Alaska Bar to show that there was a strong foundation for 

the psychiatrist's findings - no evidence that Nash suffers from a psychiatric disorder, 

no evidence that he presents a risk of abusing minors or adults, and no evidence of other 

disorders or traits unbecoming a lawyer. 

                                                  -30-                                             6585

----------------------- Page 31-----------------------

                Preliminarily, Bar Rule 7, section 4, precludes basing a finding solely on 
hearsay    evidence.21      Accordingly,     without    other  evidence    supporting     the  alleged 

destruction of evidence, it is not proper to base a finding on the affidavit alone.22 

                The affidavit does not warrant denying Nash's application.             The affidavit 

is circumstantial evidence, stating that the envelopes disappeared while Nash had access. 

The   affidavit   rests   on   the   assumptions   that   particular   manilla   envelopes   contained 

information   from   Jemez   Springs   and   that   the  church   employee's  memory   of   which 

manilla envelopes were in the church files at the time of Bishop Kenny's death was 

accurate.   No aspect of the affidavit is corroborated, except for the fact that Nash filled 

in as interim bishop.      The event described in the affidavit preceded the affidavit by 

approximately eight years.       The employee did not appear and was not subject to cross- 

examination or questioning before the hearing master. 

                When the Board brought up the affidavit in oral argument, Nash's attorney 

noted it had not been discussed below, pointed to evidence tending to show that Bishop 

Kenny himself had destroyed the files, and pointed out an apparent inconsistency in the 
affidavit.23  Despite this, and without any additional information, the Board's decision 

        21      Bar Rule 7, section 4, provides, in pertinent part: 

                Hearsay      evidence     may    be   used    for   the  purpose     of 
                supplementing or explaining other evidence but shall not be 
                sufficient standing alone to support a finding unless it would 
                be admissible over objections in civil actions. 

        22      Because both parties refer to the affidavit as hearsay, we assume, without 

deciding, that the affidavit is indeed hearsay. 

        23      The alleged inconsistency was that the affidavit suggested that two priests 

had identical manilla envelopes from Jemez Springs, but McCormick stated that the other 
priest had not attended Jemez Springs. 

                                                 -31-                                           6585

----------------------- Page 32-----------------------

asserted that the affiant "is reliable" and that "[t]here seems no reason for [her] to lie." 

We cannot agree. The allegations in the affidavit have not been submitted to the scrutiny 

we expect of evidence upon which a bar application is denied. 

                Further, Nash submitted evidence rebutting the affidavit.  Supporting the 

contention that Bishop Kenny destroyed the documents, the record contains the cover 

sheet to the report, which states: "[These documents] ARE TO BE DESTROYED OR 


Corroborating   this,   Father   Hoare   testified   that   standard   practice   was   to   destroy   the 
reports, and that he expected Bishop Kenny to have done so.24             Nash testified that Bishop 

Kenny told Nash the documents had been destroyed. And Nash's attorney mentioned the 

testimony of an Alaska attorney who stated that Bishop Kenny had told him (the Alaska 
attorney) that the documents had been destroyed.25 

                Weighing the evidence contradicting the affidavit, the Board's decision 

called the issue a "tie."   We disagree.  Even putting aside the question of whether the bar 

rules allow reliance on the affidavit, and putting aside the untested nature of the affidavit 

and questions about it, the record nonetheless contains credible evidence suggesting how 

the reports in question were destroyed, and does not support finding that Nash destroyed 

the reports. 

        24      Because   the   entity   that   created   the   documents   required   that   they   be 

destroyed, it would not necessarily have been inappropriate had Nash, while serving as 
bishop, destroyed them, and we would  not necessarily conclude that destroying the 
documents in 1995 points to destruction of evidence for a hearing that occurred over ten 
years later.   All the same, Nash testified that he did not destroy the documents. 

        25      As the issue did not come up below in the Alaska hearings, this evidence 

was not introduced to the Alaska hearing master. 

                                                  -32-                                            6585

----------------------- Page 33-----------------------

        C.      The Record Supports Approving Nash's Moral Character Application. 

                Bar Rule 2, section 1(d), requires that every applicant to the Alaska Bar 

"[b]e one whose conduct justifies the trust of clients, adversaries, courts and others with 

respect to the professional duties owed to them."  The rule lists ten situations that trigger 

heightened scrutiny; three are relevant to Nash's application: 

                (3)     making of false statements under oath or affirmation, 
                including omissions; 
                (4)     acts      involving      dishonesty,      fraud,     deceit    or 
                misrepresentation; . . . [and] 
                (7)     evidence of mental or emotional disorders . . . .[26] 

Assessing these situations, the following factors should be considered: 

                (1)     the   applicant's    age   at  the  time   of   the  conduct   or 
                (2)     the recency of the conduct or condition; 
                (3)     the    reliability   of  the   information     concerning     the 
                conduct or condition; 
                (4)     the seriousness of the conduct or condition; 
                (5)     the     circumstances      surrounding       the   conduct     or 
                (6)     the    cumulative      effect   of   conduct,     condition    or 
                (7)     the evidence of stabilization or rehabilitation; 
                (8)     the applicant's positive social contribution since the 
                conduct or condition; 
                (9)     the applicant's truthfulness in the admissions process; 
                (10)    the       materiality        of     any      omissions         or 

                Based   on   these   guidelines,   we   find   that   Nash   has   the   moral   character 

requisite to practice law in Alaska. We review below the relevant components of this 

        26      Alaska Bar R. 2,  1(d). 

        27      Id. 

                                                  -33-                                             6585 

----------------------- Page 34-----------------------

decision, focusing on each of the three situations that trigger scrutiny according to Bar 

Rule 2, section 1(d). 

                The first relevant situation is the making of false statements, including 
omissions.28      There   are   two   such   allegations   in   the   record,   one   alleging   Nash   was 

untruthful with answers about Jemez Springs, and the second contending Nash was 

untruthful in characterizing his departure from the priesthood.  We discussed the first in 

depth above, and find no support for it.          The second is likewise unsupported.  Bishop 

Warfel alleged that Nash improperly characterized his departure from the priesthood as 

a resignation, when it should have been referred to as a dismissal. But the language Nash 

used was expressly authorized by a settlement agreement between him and the church 
and, when testifying, the bishop could not point to inconsistent language used by Nash.29 

Accordingly, we find that the record does not support finding against Nash based on the 

making of false statements. 

                The   second   relevant   situation   raised   in   Bar   Rule   2   is   acts   involving 
dishonesty.30    This relates to the allegation that Nash destroyed documents.                Although 

destruction of the documents was arguably proper in light of the requirement that they 

be destroyed, Nash testified that he did not destroy them, and accordingly we address the 
dispute concerning their destruction. The affidavit containing the allegation is hearsay,31 

on which a finding may not rest, per Bar Rule 7, section 4.  Further, as discussed above, 

        28      Alaska Bar R. 2,  1(d)(3). 

        29      We note also that the language used in the Latin proclamation was in no 

way certain, and Nash's reading is supported by outside commentators as well as the 
situation in which his departure from the priesthood came about. 

        30      Alaska Bar R. 2,  1(d)(4). 

        31      See supra note 22. 

                                                  -34-                                             6585

----------------------- Page 35-----------------------

the   affidavit   is   not   supported   by   evidence   in  the   record.    Finally,   the   affidavit's 

persuasive force is weakened under factors set out in Bar Rule 2, including the reliability 
of the information containing the allegation and the absence of similar allegations.32                  As 

noted above, we ultimately conclude that the evidence does not support the affidavit's 
implication that Nash destroyed the files.33 

                 The third relevant situation concerns mental or emotional disorders.34  The 

Board's decision implies that Nash was diagnosed with or treated for sexual disorders, 

which could be pertinent to Bar Rule 2, section 1(d)(7).                 However, there is no actual 

        32       Alaska Bar R. 2,  1(d), factor (3). 

        33       We consider but decline to remand the affidavit issue to the Board for 

additional consideration.   The affidavit is an insufficient basis on which to deny Nash's 
application.   The only remaining question is whether a remand for further investigation 
on this issue is in order.   We conclude that it is not:   At some point, an examination must 
end, and we believe this is that point.           Nash's bar application has been the subject of 
multiple   processes,   requiring   extensive   documentation.           We   cannot   say   there   is   an 
insufficient   record,   particularly   since   we  have   now   reached   the   level   of   detail   of 
reviewing   a   14-year-old   hearsay   allegation   that   was   background   information   for   a 
psychiatrist's evaluation, and the Diocese's own report - both of which declined to 
conclude against Nash. 

                 We   are   further   persuaded   by   our   decision   not   to   remand   in Matter   of 
Robson, 575 P.2d 771, 775 (Alaska 1978).                 There, considering a well-meaning board 
whose actions nonetheless gave an appearance of impropriety, we decided that "[i]f the 
. . . Board members were in any manner influenced . . . there is no way that we can assure 
the   removal   of   such   an   effect   from   their   findings." Id.   at   775-76.    We   were   also 
concerned about the prejudice a delay would cause. Id. at 776.   We concluded:   "Since, 
regardless of [actual impropriety], we believe that there is a fatal appearance of lack of 
impartiality,     we   decided     to  for[]go   [a remand]      in  order   to  conclude     this  matter 
expeditiously." Id. at 773 n.3.          Because the case before us today has raised several 
irregularities   concerning   the   handling   of   the   case   below,   we   are   not   persuaded   that 
accuracy, expediency, or public confidence is best served by a remand. 

        34       Alaska Bar R. 2,  1(d)(7). 

                                                   -35-                                              6585

----------------------- Page 36-----------------------

evidence of such a diagnosis.  Nash testified that he was not diagnosed.  Other evidence 

corroborates the assertion that Nash's time at Jemez Springs was not due to a specific 

diagnosis.   And, importantly, a recent psychiatric exam of Nash found no evidence that 

he suffers from a psychiatric disorder, no evidence that he presents a risk of abusing 

minors or adults, and no evidence of other disorders or traits unbecoming a lawyer. 

                Of course, there is additional evidence in the record, including an allegation 

that   Nash   sexually    assaulted   J.P.   However,   multiple   tribunals   have   found   those 
allegations unsupported or insufficient,35 the Alaska prosecutor declined to prosecute 

Nash, and no court of law has tried Nash on the charge.             The record does not contain 

evidence to support a finding of Nash's guilt, and we do not presume Nash to be guilty. 

                There is evidence of inappropriate sexual conduct from the 1980s:              Nash 

has admitted to the tickling, massages, and calisthenics imposed on youth on his trips. 

Nash has demonstrated contrition for those actions and apologized to those affected. 

Nash long ago vowed to change his behavior and there are no recent reports of any such 
activity.   Both the Iowa Supreme Court36 and the Board of Governors of the Alaska Bar 

Association   have   reviewed   these   allegations   of   misconduct,   and   neither   found   the 

conduct to warrant denying Nash's application.            We agree, particularly in light of the 

factors from Bar Rule 2, section 1(d), including the recency of the conduct, the evidence 
of rehabilitation, and the applicant's truthfulness regarding the situation.37 

                The record contains positive testimony from many individuals and 52 letters 

of   recommendation   supporting   Nash's   application.         These   are   compelling   letters, 

        35      See, e.g., In re Nash, 739 N.W.2d 71, 73 n.3 (Iowa 2007). 

        36     Id. at 75. 

        37      Alaska Bar R. 2,  1(d), factors (2), (7), and (9), respectively. 

                                                -36-                                             6585 

----------------------- Page 37-----------------------

documenting knowledge of Nash from many perspectives and many points in his life. 

They recommend Nash as a trustworthy and compassionate person, and as someone 

possessing   the   requisite   maturity   and   skills   to   serve   this   state   as   an   attorney. This 

evidence is supported by a psychiatric report on Nash.             Further, Nash appears to have 

been truthful in the application process as evidenced by his disclosures on the application 

form, his cooperation in having evidence discovered and compiling a robust record, and 

his candor in providing full information to his many recommenders.                 The record thus 

developed is abundant, spanning hundreds of pages.             Despite the allegations discussed 

in depth above - which we find unsupported - the record contains no confirmed 

instances of Nash lying, committing illegal acts, omitting information, or otherwise 

behaving dishonestly.        Rather, the impression one is left with is of a man who has the 

support of those who have known and worked with him.  It appears Nash had periods of 

difficulty in his life, but there is evidence of sincere remorse, reflection, and growth, and 

we do not find evidence of recent inappropriate acts or acts justifying denying Nash's 



                Because   we   find   that   it   was   based   on   misstatements   of   the   record,   we 

VACATE the decision below.            Applying our independent judgment and reviewing the 

entirety of the record before us, we find Nash to have the requisite character to satisfy the 

requirements of Alaska Bar Rule 2, section 1(d).             We ORDER the Board to process 

Nash's application in a manner consistent with this opinion. 

                                                 -37-                                           6585

----------------------- Page 38-----------------------

FABE, Justice, dissenting. 

                The court today finds Michael Nash to have satisfied the moral character 

requirement for admission to the Alaska Bar.  The court's decision relies in significant 

part on its conclusion that "the record contains no confirmed instances of Nash lying, 
committing illegal acts, omitting information, or otherwise behaving dishonestly."1                  But 

like the Board of Governors, we have not heard directly from Nash on the issues in 

contention in this case.   The only finding we have on Nash's honesty is from the hearing 

master, Mary K. Hughes, who heard Nash testify and found that "Nash's lack of memory 

re: the evaluation is not credible."   Because this court is not well situated to overrule the 

hearing master's determination of Nash's credibility, I believe that this case should be 

remanded to the Board for a new hearing that would be free of any of the procedural 
shortcomings identified by the court's decision.2 

                I agree with the court that the Board's decision cannot be affirmed in light 

of   the   flaws   in   the   Board's   procedure  and   the   erroneous   findings   that   underpin   its 

decision.   But the record before the court does not allow us to conclude with confidence 

that Nash has met his burden of establishing that he is "one whose conduct justifies the 
trust of clients, adversaries, courts and others."3        As the court recognizes, in Alaska, "the 

applicant [bears] the burden of proving the material facts upon which the applicant 
relies."4   Although   in   disciplinary   proceedings   the   Bar   Association   must   prove   the 

        1       Slip Op. at 37. 

        2       Slip Op. at 26 n.18. 

        3       Alaska Bar R. 2,  1(d). 

        4       Alaska Bar R. 6,  3; see Slip Op. at 15. 

                                                  -38-                                             6585

----------------------- Page 39-----------------------

charges of attorney misconduct by clear and convincing evidence,5 it is the applicant for 

certification who bears the burden of demonstrating the requisite character to practice.6 

In deciding to grant Nash's application to the Alaska Bar, the court emphasizes the lack 

of record support for the Board's factual findings that weigh against Nash's admission. 

There is a significant difference, however, between a record that fails to support the 

findings of the Board and a record that proves by a preponderance of the evidence that 

Nash has demonstrated the requisite character required by Bar Rule 2, section 1(d).  The 

court's decision goes beyond identifying the problems with the Board's decision and 

procedure - it entirely releases Nash from his burden, simply admitting Nash to the Bar 

despite the existence of serious, unresolved questions regarding his honesty and candor 

during the application process. 

              The hearing master found that Nash's lack of memory on a critical issue of 

fact was "not credible."  During its hearing, the Board did not hear testimony from Nash 

himself, but instead heard only from Nash's attorney.  At this juncture, therefore, Nash 

has only testified before the hearing master, so we are left only with her finding that his 

purported lack of memory is not credible.  "Credibility determinations made by the trier 
of fact are generally left undisturbed by this court on review."7 And the hearing master's 

finding is significant because it relates to Nash's purported lack of memory about his 

intake evaluation at the Jemez Springs treatment facility.  The hearing master's finding 

that "Nash's lack of memory re: the evaluation is not credible and it is unfortunate that 

the records are not existent" is relevant to two factors listed by Alaska Bar Rule 2, 

       5      In re Ford, 128 P.3d 178, 180 (Alaska 2006). 

       6      See, e.g., Seide v. Comm. of Bar Exam'rs, 782 P.2d 602, 604 (Cal. 1989) 

(in bank); In re Bowen, 447 P.2d 658, 660 (Nev. 1968). 

       7      Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722, 

728 (Alaska 1995). 

                                            -39-                                      6585

----------------------- Page 40-----------------------

section 1(d) "as cause for further inquiry" before a decision should be made on the 

question   whether   the   applicant   possesses   the   character   and   fitness   to   practice   law: 

"(3) making of false statements under oath or affirmation, including omissions" and 

"(7)   evidence   of   mental   or   emotional   disorders."      If   Nash   was   not   truthful   in   his 

testimony before the hearing master, as her credibility finding suggests, this lack of 

candor   could   itself   constitute   "[c]onduct   manifesting   a   significant   deficiency   in   the 
honesty, trustworthiness, diligence or reliability of an applicant."8 

                Honesty is perhaps the most important attribute of the moral character 

qualification     for  bar   membership,      and   an   applicant's   failure   to  answer    truthfully 
questions associated with his or her application to the bar weighs against admission.9                As 

the Connecticut Supreme Court explained:              "It is not enough for an attorney that he be 
honest.    He must be that, and more.        He must be believed to be honest."10  The hearing 

master's finding also casts doubt on Nash's assertion that he was not diagnosed with or 
treated for any psychological or personality disorders at the facility in Jemez Springs.11 

        8       Alaska Bar R. 2,  1(d). 

        9       See,   e.g., In   re   Green,   464   A.2d   881,   885   (Del.   1983)   ("Good   moral 

character has many attributes, but none are more important than honesty and candor."); 
In re Stern, 943 A.2d 1247, 1258 (Md. 2008) ("We have emphasized the importance of 
candor in . . . the Bar application process."); In re Allan S., 387 A.2d 271, 275 (Md. 
1978) ("[N]o moral character qualification for Bar membership is more important than 
truthfulness and candor."); Strigler v. Bd. of Bar Exam'rs, 864 N.E.2d 8, 11 (Mass. 2007) 
("An applicant's failure to answer all of the board's questions candidly, both on the 
application and at any hearing, is a powerful indication that the applicant lacks the good 
character required for admission to the bar.") 

        10      Doe v. Connecticut Bar Examining Comm., 818 A.2d 14, 24 (Conn. 2003) 

(quoting Scott v. State Bar Examining Comm., 601 A.2d 1021, 1026 (Conn. 1992)). 

        11      Municipality of Anchorage, Police & Fire Ret. Bd., 893 P.2d at 729 (citing 

Innes v. Beauchene, 370 P.2d 174, 177 (Alaska 1962)) (recognizing that "the witness's 

                                                  -40-                                                6585 

----------------------- Page 41-----------------------

                 The court focuses on the Board's mistakes in characterizing the record and 

concludes that Nash's "alleged lack of candor . . . was based on factual assertions having 
no basis in the record."12     Yet the Board's finding did have factual support - the hearing 

master's   credibility   finding.     Moreover,   the   court   relies   on   its   somewhat   generous 

characterization of the facts in the record to conclude that Nash does possess "the moral 
character requisite to practice law in Alaska."13          The court, for example, calls the letters 

submitted to the Iowa Bar "compelling" and "impressive in their breadth and depth" and 

asserts that the letters make it "appear[] that Nash has been forthright regarding the 
allegations against him."14      Thus, the court concludes, remand is unnecessary because of 

the extensive record that has been developed in this case.15  I disagree. 

        11       (...continued) 

demeanor   may   convince   the   trier   of   fact  that   the   truth   lies   directly   opposite   of   the 
statements of the witness, especially wherethe witness is interested in the outcome of the 

        12       Slip Op. at 18. 

        13       Slip Op. at 34. 

        14       Slip Op. at 12.      The court also quotes at length from the Iowa Supreme 

Court's decision that allowed Nash to sit for that state's bar examination. Slip Op. at 13- 
14.     But it is our responsibility to independently review the proceedings before the 
Alaska Bar Association to protect the Alaskan public.               As we have noted, "[n]o matter 
how learned in the law [applicants] may be . . . [they] can never be admitted to the bar 
until [they] can satisfy the court that [they] possess[] that first requisite to admission to 
the bar, a good moral character." In re Buckalew, 731 P.2d 48, 55 n.27 (Alaska 1986) 
(quoting Ex Parte Thompson, 152 So. 229, 238 (Ala. 1933)). 

        15       Slip Op. at 35 n.33. 

                                                   -41-                                              6585

----------------------- Page 42-----------------------

                Given the posture of this matter, where there were procedural flaws in the 

Board's hearing and where its findings of fact were not adequately supported by the 

record, the proper remedy is not simply to admit Nash - any more than it is to deny him 

admission.  Nash must be allowed the opportunity to meet his burden of proving that he 

satisfies the requirements set forth in the Bar Rules through a meaningful hearing before 
the Board.16   Remand is appropriate in this case because of the seriousness of the hearing 

master's credibility finding and because Nash is entitled to have the Board consider his 
application in an impartial hearing.17 

                When   faced   with   a   similar   situation   where   a   decision   by   the   state   bar 

examining committee was not supported by factual findings, a Connecticut appellate 
court declined to admit the applicant to the Connecticut Bar.18   The Connecticut court 

held that remand for further factual findings was the proper remedy because the bar 

examining   committee   had   failed   to   make   findings   of   fact   that   were   essential   to   the 
appellate court's review of the decision.19         Similarly, in this case Nash must be given a 

fair hearing before the Board so that the Board can either adopt the factual findings of the 

hearing master or make its own findings. 

        16      See In re Peterson, 459 P.2d 703, 706 n.7a (Alaska 1969) ("[T]his court will 

not undertake to review the merits of an appeal until the unsuccessful applicant has been 
accorded a meaningful appellate hearing before the Board of Governors."); see also City 
of   Nome     v.  Catholic   Bishop    of  N.  Alaska,    707   P.2d   870,   876-77    (Alaska    1985) 
(exercising      the  court's   equitable     power    to  remand     portions    of   the  case   to  an 
administrative agency to allow a party to submit additional evidence). 

        17      See Alaska Bar R. 6,  6; In re Robson, 575 P.2d 771, 773-74 (Alaska 


        18      Friedman v. Connecticut Bar Examining Comm., 824 A.2d 866, 877 (Conn. 

App. 2003). 

        19      Id. 

                                                  -42-                                             6585

----------------------- Page 43-----------------------

              On remand, the hearing before the Board could be free of any procedural 
deficiencies or potential biases identified by the court's opinion.20  The Board could make 

further findings of fact, including a finding on Nash's credibility supported by record 

evidence.    Nash would have the opportunity to testify directly before the Board.         In 

addition to allowing the Board to consider Nash's credibility, remand would provide an 

opportunity for the Board to seek additional evidence to supplement the factual record 

on   the  allegations   that  Nash  destroyed  relevant    documents    and  to  contact   the 

professionals at Jemez Springs who evaluated and treated him there. 

              Although I share the court's concerns regarding the Board's procedures and 

the lack of support for its factual findings in this case, I respectfully dissent from the 

court's decision to apply its independent judgment and admit Nash.  I would remand to 

the Board for a further evidentiary hearing and additional findings by the Board. 

       20     Slip Op. at 26 n.18. 

                                            -43-                                         6585 
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