News Stream

Court rejects sleep apnea excuse in weighing applicant’s character

A law school graduate, appealing the rejection of his application to take the Georgia bar exam due to questions about his character and fitness, argued that his untreated sleep apnea had affected his memory and attention in a way that should excuse his lapses in honestly answering questions on the application. But in an August 27 ruling, the Supreme Court of Georgia found that the state Board of Bar Examiners was justified in refusing to issue a certificate of fitness for the candidate.

(In re Montesanti).

The applicant, John Anthony Montesanti, graduated in 2015 and began a checkered application process including a withdrawal of an application to the Florida bar before a determination was made, a subsequent submission to the Georgia Bar and several amendments to that application. When the Georgia board issued a tentative denial, Montesanti requested a formal hearing, which was held in 2017.

A former supervisor of Montesanti’s internship testified at the hearing that the applicant had not shown the professionalism needed to be admitted to the Bar. In addition, the hearing officer found that Montesanti demonstrated a pattern of failing to disclose relevant information to the board and the Florida Bar.

For example, Montesanti provided different explanations to the board for his failure to pay a judgment against him in small claims court case; in one explanation, he forgot to pay, while at another point he said he intentionally did not pay because he disagreed with the judgment.

 

He withdrew his application to the Florida Bar for financial reasons, he said in one letter, but he blamed an “undetermined illness” in another letter.

The candidate told the Board that his memory and attention were impaired during the application process by the effect of lack of sleep because he found during the process that he suffers from sleep apnea—leading to his inconsistencies and evolving explanations for his conduct. He alleged that the board wrongly failed to make any accommodation for his sleep apnea, a disability.

An affidavit by a physician, which Montesanti submitted to the hearing panel, stated that untreated sleep apnea induces “inattention, . . . induces or exacerbates cognitive deficits, [and] increases the likelihood of errors and accidents.” His omissions on his bar applications, Montesanti claimed, were “secondary to” his untreated sleep apnea, which he said was now being mitigated by treatment with a CPAP machine.

The court said it would not decide whether sleep apnea was a disability as Montesanti claimed. But, the judges concluded, even assuming that the sleep condition qualifies as a disability, Montesanti still had to meet the essential eligibility requirements for the profession, and fitness was one of those requirements.

The court affirmed the Board’s decision to deny his application for a certificate of fitness.

Fitness determinations require the Board to examine an applicant’s “innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness, and self- restraint which are usually associated with the accepted definition of good moral character,” the court said, quoting In re Lubojovic, 248 Ga. 243, 245 (282 SE2d 298) (1981).