Litigation Update

This article originally appeared in The Bar Examiner print edition, June 2016 (Vol. 85, No. 2), pp 57–62.

By Kellie R. Early and Jessica GladCharacter and Fitness

Failure to cooperate with character and fitness investigation; dishonesty

In re Application of Greenberg, Slip Opinion No. 2016-Ohio-613 (OH 2016)

The Supreme Court of Ohio denied bar admission to an applicant who failed to cooperate in his character and fitness investigation and sat for the bar exam before he had received a law school degree.

Eric Greenberg applied to take the July 2013 Ohio bar examination but was unable to sit for the test because he failed to timely meet certain requirements, including submitting a certification from his law school verifying his degree. He applied and sat for the February 2014 bar exam, but did not receive a passing score. It was subsequently discovered that during the application process, Greenberg’s law school had erroneously certified that he had been awarded a degree, when in fact he had not.

After reviewing Greenberg’s application, the Board of Commissioners on Character and Fitness determined that his appearance at and completion of the February 2014 bar examination when he knew that he did not have a law degree warranted additional review of his character and fitness to practice law. The board was also concerned that Greenberg appeared to have led the admissions committee to believe that he had completed his law school graduation requirements.

Accordingly, the board exercised its sua sponte investigatory authority and appointed a panel to conduct a hearing on Greenberg’s character, fitness, and moral qualifications to practice law. The panel chair attempted to contact Greenberg several times by e-mail and telephone to schedule the hearing, but received no response. The panel chair also sent a certified letter as well as a letter via ordinary mail. The certified letter was returned unclaimed, but the letter sent by ordinary mail was not returned. The panel did not receive a response.

The panel found that Greenberg failed to cooperate in the investigation and recommended that his application for admission to the bar be disapproved. The board adopted the panel’s recommendation. On review, the Court accepted the board’s recommendation.

“Greenberg has not demonstrated the requisite character, fitness, and moral qualifications to be admitted to the bar. Greenberg’s failure to appear for a hearing is sufficient grounds for disapproving his application,” the decision states.

“Moreover,” the Court stated, “his sitting for the February 2014 bar examination when he knew that he had not met his law-school-graduation requirements was an act involving dishonesty,” and therefore relevant to Greenberg’s character and fitness to practice law.

Although the Court disapproved Greenberg’s application, it noted that he could reapply for admission to the bar in the future by filing an application to register as a candidate for admission to the practice of law and an application to take the bar examination, and by undergoing a complete character and fitness investigation.

Character and Fitness

Failure to exercise good judgment; failure to conduct oneself with honesty, integrity, and trustworthiness; dishonesty and misrepresentation involving lying to law enforcement officers and court personnel

In re Application of Scannell, 2016 WL 744422 (OH 2016)

John Richard Scannell graduated from the University of Cincinnati College of Law in 2013 and applied to take the July 2013 Ohio bar examination. The Trumbull County Bar Association admissions committee recommended on May 13, 2013, that Scannell’s application be approved as to his character and fitness for admission. The Board of Commissioners on Character and Fitness subsequently announced that it would exercise its sua sponte authority to further investigate Scannell’s character and fitness, and it notified him on July 15, 2013, that he would not be permitted to take the July 2013 examination. On August 5, 2013, Scannell was involved in an automobile accident and was cited for improper backing.

A panel of the board held hearings in June and September 2014. The June hearing dealt with Scannell’s conduct after the August 2013 automobile accident, and the September hearing dealt with a fight between Scannell and his girlfriend in July 2012.

The August automobile accident involved Scannell backing his truck into a motorcycle. He asked the motorcyclist, Erik Richardson, if he could handle the incident privately by paying for repairs by cash or check. Richardson, a former law enforcement officer, declined and reported the accident to the Cuyahoga Falls Police Department. The police arrived within minutes after the accident and cited Scannell for improper backing.

On August 12, 2013, Scannell and his father attended the traffic citation hearing in the mayor’s court. Both Scannell and his father approached the bench when the case was called. Scannell’s father told the magistrate that he—not his son—had been driving the truck at the time of the accident. He stated that when the police arrived at the scene, he was “over in the bushes throwing up” due to nausea caused by chemotherapy. Scannell did not correct or dispute his father’s statement to the magistrate, and Scannell pointed to a map to show the magistrate the location of the bushes.

At the June 2014 panel hearing, all of the witnesses admitted that Scannell was driving the truck, that no one was in the truck with Scannell, and that Scannell’s father was at home in Cortland, Ohio, when the accident occurred. In Scannell’s testimony at the panel hearing, he insisted that he had told the magistrate that he had been “in control” of the truck and that he should be charged with the traffic offense. He claimed that he had not told the magistrate that his father was driving.

The panel found the testimony of the prosecutor assigned to the traffic case, Stacy McGowan, to be more credible. McGowan testified that she recalled Scannell stating multiple times to the magistrate that his father was the driver of the truck. It was not clear whether his statements to the magistrate were under oath. McGowan asked Scannell why he had not told the police that his father was the driver, and he responded that he was afraid his father would be arrested for driving while intoxicated because his father was vomiting in the bushes. McGowan dismissed the traffic case without prejudice, but she informed Scannell and his father that she was going to investigate further. She warned them that they would face criminal charges if they were lying about the accident, but they both assured her that Scannell’s father had been the driver.

Scannell also testified before the panel that he and his father had returned to the police station and the mayor’s court the week of August 19, 2013, after the traffic case, to try to “secure a ticket in Scannell’s name.” A Cuyahoga Falls Law Department employee, Diana Sudia-Smith, testified to the contrary at the panel hearing. She said that Scannell and his father both demanded that she dismiss the ticket against Scannell and reissue it against his father, with Scannell speaking more than his father during the interaction.

Another prosecutor, John Chapman, testified that the father submitted a written police report on August 19, 2013, stating that the father was the driver of the truck.

Scannell was charged with improper backing and obstructing official business. He entered a plea of no contest to the charge of improper backing and to an amended charge of disorderly conduct. He was fined $250, which was partially suspended, and sentenced to 30 days in jail, which was suspended on condition that he obey all laws for one year. Scannell’s father was charged with obstructing official business but pleaded no contest to an amended charge of falsification. He also received a partially suspended fine and a suspended jail sentence.

The panel found that Scannell knowingly made false statements to a magistrate and a prosecutor about the automobile accident, gave false testimony under oath at the panel hearing, and attempted to have the traffic citation issued in his father’s name. The panel recommended that Scannell’s application be disapproved and that he not be permitted to reapply.

The panel reconvened in September 2014 to hear testimony regarding an altercation between Scannell and his girlfriend in July 2012 that resulted in his being charged with disorderly conduct. The charge was dismissed after he completed a one-year pretrial diversion program.

Scannell had initially reported to the Office of Bar Admissions that he and his girlfriend were charged with disorderly conduct after they “engaged in horseplay, argued over seashells, and had a sand fight” on a beach in North Carolina. One week after this report, during an admissions committee interview, he said that witnesses to the altercation and the authorities had had a “misunderstanding” about whether the altercation involved physical violence.

At the September panel hearing, Scannell testified that his girlfriend “slapped him on the head and threw sand at him at the end of an argument.” He then held her in a bear hug to prevent her from further hitting him and reminded her of her previous promise that he could have a “free slap” if she ever hit him again. He claimed that she told him to go ahead and that only the “tip of his finger grazed her chin” when he “made the motion of slapping her.” In the girlfriend’s written statement made to the park ranger at the time of the incident, she claimed that she told Scannell, “Go ahead, I’d like to see you do it,” and that he struck her on the face with his open hand. Witness reports corroborated the girlfriend’s version of the incident.

Scannell admitted that he had been drinking but denied that he was intoxicated at the time of the altercation. His girlfriend testified that they were both intoxicated. According to the National Park Service record, law enforcement officers had handcuffed Scannell and placed him in a cruiser. When he was being transferred from the cruiser to another vehicle, he showed signs of intoxication; he refused to take a breathalyzer test and attempted to prevent his girlfriend from taking one.

Although the panel acknowledged that the details of the altercation were not clear, it did not find Scannell’s testimony to be credible. It noted that his description of the incident in his application as a “sand fight” also raised concern about his candor. The panel found that Scannell “failed to provide complete and accurate information concerning his past, made false statements, including omissions, and lacked candor during the admissions process.” It concluded that he lacked sufficient honesty and integrity and recommended that his application be disapproved and that he not be permitted to reapply. The board adopted the panel’s findings and recommendation.

The Ohio Supreme Court stated that “[t]he evidence shows that Scannell failed to exercise good judgment in conducting his personal legal affairs, failed to conduct himself with a high degree of honesty, integrity, and trustworthiness, and, in fact, engaged in a pattern of dishonesty and misrepresentation that involved lying to law-enforcement officers and court personnel—a pattern that continued throughout these admission proceedings.” The Court disapproved Scannell’s application but granted him permission to reapply in two years provided that he (1) undergoes a mental health evaluation by a licensed professional selected by the board; (2) submits a new application that includes the results of the mental health evaluation; and (3) completes a new character and fitness examination.

Character and Fitness

Violation of bar examination rules by writing after time is called

In re Application of Jia, 2016 WL 541125 (OH 2016)

Lingyu Jia graduated from Case Western Reserve University School of Law in 2013. The Board of Commissioners on Character and Fitness approved Jia’s character and fitness and permitted her to sit for the July 2014 Ohio bar examination. On the second day of the examination, when the Multistate Bar Examination (MBE) was administered, the director of the Office of Bar Admissions gave a warning five minutes before the morning examination session was to end. When the official subsequently gave the command to stop writing, Jia continued to write.

Examinees were seated two per table on opposite sides of the table. An examinee who was seated at an adjacent table facing Jia observed her fill in about three bubbles on the answer sheet, but he did not report his observation to a proctor during the examination. He did, however, ask the female examinee seated at his table, who he did not know prior to the examination, if she had observed Jia writing after the stop command, and she replied that she had not.

During the afternoon session of the MBE, the bar examination official gave a five-minute warning before the end of the session and subsequently gave the command for examinees to stop writing at the end of the session. The two examinees at the adjacent table who had discussed Jia’s failure to stop writing when time was called during the morning session both looked in Jia’s direction at the end of the afternoon session to see if she would continue writing. Both observed Jia fill in one bubble after time was called in the afternoon session. The female examinee reported her observation of Jia to a proctor the next morning.

The third day of the bar examination consisted of a morning-only session during which six essay questions were administered two at a time. Examinees were permitted to type their answers using a laptop computer program. Because the female examinee at the adjacent table had reported her observation of Jia to a proctor, an employee of the Office of Bar Admissions who was proctoring the examination approached Jia’s table at the end of time allotted for the first two essay questions. The employee testified that after the instruction to exit the laptop program, “Jia did not remove her hands from the keyboard and let them hover over it as if she were going to continue typing—but she did not continue to type.” The employee placed her hand on Jia’s shoulder or desk and told her to stop, after which Jia removed her hands from the keyboard and then exited the computer program. Jia was not observed to type after time was called in the two remaining essay sessions that morning.

After the bar examination, the male examinee who had been seated at the table adjacent to Jia’s sent an email to the director of the Office of Bar Admissions informing her of his observations of Jia. His email prompted an investigation. A panel of the Board of Bar Examiners convened a hearing and heard testimony from Jia, the two examinees at the adjacent table, the examinee seated at Jia’s table, and the employee/proctor who had observed Jia on the third day of the examination.

Jia admitted that she had continued to write after the stop command at the end of the MBE morning session, but she claimed that she had filled in only one bubble. She testified that she had not written after time was called in the afternoon session of the MBE. The panel found that Jia had knowingly violated bar examination rules by filling in one or more bubbles after time was called at both the morning and afternoon sessions of the MBE. There was insufficient evidence that she had violated any rule on the third day of the examination. Jia expressed remorse and apologized.

The Board of Bar Examiners adopted the panel’s report and imposed a penalty of 16.7% of Jia’s MBE score, which was comparable to the sanction that is imposed on examinees who write after time is called during an essay session of the examination. Even after the penalty was imposed, Jia’s score was sufficient to pass the bar examination. The Board of Bar Examiners referred the matter to the Board of Commissioners on Character and Fitness.

A character and fitness panel hearing was held, at which Jia and the two examinees from the adjacent table testified. The panel found the testimony of the two examinees to be credible. The panel could not determine whether Jia’s testimony was intentionally inaccurate or whether her “recollection of the events was clouded by the stress of taking the bar exam,” but it concluded that she had twice continued to write after time was called on the MBE portion of the exam. The panel recommended that Jia’s application be disapproved but that she be permitted to submit an affidavit and a supplemental character questionnaire on or after May 1, 2016, after which she could be sworn in as an attorney if those documents reflected no further character and fitness issues. The Board of Commissioners on Character and Fitness adopted the panel’s recommendation.

The Ohio Supreme Court adopted the finding of the Board of Commissioners on Character and Fitness that Jia failed to meet her burden of proving by clear and convincing evidence that she currently possesses the requisite character, fitness, and moral qualifications for admission to practice law because she continued to write after time was called during two sessions of the bar examination. The Court disapproved her application but granted her permission to submit an affidavit and supplemental character questionnaire on or after May 1, 2016. If no further issues are revealed, she may be sworn in as a member of the Ohio bar at that time.

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