Litigation Update

This article originally appeared in The Bar Examiner print edition, June 2017 (Vol. 86, No. 2), pp 48–52.

By Kellie R. Early

Bar Admissions

Undergraduate degree requirement does not apply to an attorney applying to take the bar examination

In the Matter of Harlin, 393 P.3d 202 (OK 2017)

Caleb Harlin completed his high school education through homeschooling in Muskogee, Oklahoma, in June 2003. He worked for approximately a year before applying for admission to the Juris Doctor program at Oak Brook College of Law and Public Policy in California. Oak Brook is a distance-learning institution that is not accredited by the American Bar Association. Because he attended an unaccredited law school, Harlin was required to pass California’s First Year Law Students’ Exam after his first year of law school. He took that examination in October 2006 and passed on his first attempt. He graduated cum laude from Oak Brook in December 2009. He sat for the California bar examination in February 2010 and passed on his first attempt. He was admitted to the bar in California and maintains his license in good standing. Upon his admission in California, Harlin began working for two San Francisco law firms on a contract basis while living in Muskogee.

After practicing law for a year, Harlin contacted the Oklahoma Board of Bar Examiners to inquire about admission in Oklahoma. He spoke with the administrative director, who informed him that he did not meet the requirements of the Rules Governing Admission to the Practice of Law (RGAP) because he did not hold a law degree from an ABA-accredited law school. During this conversation, the fact that Harlin did not have an undergraduate degree did not come up. Based upon his discussion with the administrative director and his understanding of the RGAP, Harlin applied to and was accepted by the Oklahoma City University School of Law (OCU) in 2012. OCU was aware that Harlin did not hold an undergraduate degree and admitted him as an “extraordinary case” pursuant to Standard 502(b) of the ABA Standards for Approval of Law Schools. While enrolled at OCU, Harlin attempted to register with the Board as a law student in order to become a licensed legal intern. The administrative director notified Harlin by email that he did not meet the requirements to register as a law student or to take the bar examination because he did not have a bachelor’s degree. She explained that she had not yet processed his law student registration application, and that he could submit a statement to the Board explaining how he met the admission requirements of Rule 4 of the RGAP.

On March 5, 2014, Harlin submitted a statement setting forth why he believed he met the requirements of Rule 4. On April 9, 2014, he received a letter from the Board notifying him that he did not meet the filing requirements for a law student registration application. The letter also stated that if Harlin wished to take the bar examination, he could “submit an Exam Application by Attorney.” Harlin submitted the Exam Application by Attorney with the $1,000 fee on December 4, 2014. The Board processed his exam application and accepted his fee. On March 31, 2015, Harlin received a letter notifying him of the Board’s denial of his exam application and his right to appeal. He requested a hearing on April 15, 2015.

Harlin’s hearing was held before the Board on November 4, 2015. Harlin argued that the Board had erred in denying his exam application because under Rule 4, Section 1, he was not required to satisfy the undergraduate degree requirement that applied to law student registration applications under Rule 4, Section 2. The Board denied his application following the hearing, and Harlin appealed the Board’s decision to the Oklahoma Supreme Court on December 18, 2015. Briefing was completed on April 25, 2016. During the pendency of the Board’s proceedings, Harlin graduated summa cum laude from OCU, where he served on the Oklahoma City University Law Review and was voted by the faculty as the most outstanding graduate of the class of 2015.

The Court reviewed the case de novo. The Court noted that Rule 4, Section 1, applicable to attorney applicants for examination, expressly states “that such attorney shall not be required to register as a law student” and thereby exempts attorney applicants from the requirements of Rule 4, Section 2, applicable to law student registrants, including the undergraduate degree requirement. The Court noted other wording differences between Sections 1 and 2 of Rule 4 relating to the requirements for submitting an application for a character and fitness report as support for the conclusion that the plain language of Rule 4 differentiates between an attorney applicant and a law student applicant.

Further, the Court rejected the Board’s reliance on the fact that the “official eight[-]page Exam Application by Attorney, approved by the Oklahoma Supreme Court,” contains a section requiring an applicant to attach official transcripts from schools granting undergraduate and law degrees. The Court stated that “the exam application does not control over the plain language of Rule 4.”

Finally, the Court pointed to Section 3 of Rule 4, which “applies to any application to take the bar exam because it does not specify whether it applies to attorney applicants or law student applicants.” Section 3 requires that an application “contain proof of law school study . . . from a law school . . . accredited” by the ABA but does not include any requirement of proof of an undergraduate degree.

The Court concluded that Harlin had met the requirements of Rule 4, reversed the decision of the Board, and ordered that Harlin be allowed to take the Oklahoma bar examination.

Character and Fitness

Felony convictions for attempting to persuade a minor to engage in sex and possession of child pornography; rehabilitation

In re Application of Tynes, 54 N.E.3d 1237, 146 Ohio St.3d 243 (OH 2016)

John David Tynes applied for admission to the bar in Ohio. The admissions committee of the Cincinnati Bar Association recommended that his application be disapproved. He appealed to the Board of Commissioners on Character and Fitness (“Board”). A panel of the Board held a hearing and issued a report finding that Tynes was convicted in 1998 by court-martial for felony offenses resulting from his attempts to persuade girls under the age of 15 to engage in sex acts, and that this conduct made him unfit to practice law. The panel recommended that his application be disapproved and that he be permanently prohibited from applying for admission. The Board adopted the panel’s report and recommendations. Tynes objected to the Board’s report and argued that he had presented clear and convincing evidence of rehabilitation such that his application should be approved, or alternatively, that he should be allowed to reapply. The Ohio Supreme Court reviewed the report of the Board and disapproved Tynes’s application but will allow him to reapply for the July 2018 or a later bar examination.

In 1998, when Tynes was 50 years of age and serving in the military, he started joining sexually oriented chat rooms on the Internet and introduced himself to at least four females whom he believed were under the age of 15. He subsequently communicated with these females privately via e-mail and instant messaging and exchanged sexually explicit photographs with them. He then sought to arrange in-person meetings with the girls individually for the purpose of engaging in sex. He repeatedly e-mailed and called one of the girls, age 13, but she told him that her parents had grounded her. He traveled 300 miles out of his way to meet another female whom he believed to be a minor. He tried to convince her to sneak out of her home to meet him at a motel to have sex, but the girl ultimately declined. Three months later, Tynes arranged a layover during a flight while on military business and rented a hotel room for the purpose of having sex with a third girl and making a video recording of the encounter. He arranged to meet the girl outside the hotel, but when he appeared, he was arrested by the FBI. Tynes fully cooperated with the FBI and revealed that he also had pornographic images of children on his computer in his home.

Tynes was charged under the Uniform Code of Military Justice with four counts of conduct unbecoming an officer, four counts of attempting to persuade a minor to engage in sex, two counts of traveling interstate with intent to have sex with a minor, one count of knowingly possessing child pornography, and one count of knowingly receiving child pornography. He was convicted in a court-martial proceeding and sentenced to 30 months of confinement in the United States Disciplinary Barracks; he served 19 months.

At the time Tynes engaged in the criminal conduct, he was married with four children, three of whom were daughters. His children had behavioral problems, and his marriage suffered as a result. He remained married but struggled after being released from incarceration. He had to register as a sex offender, and he and his wife had to move several times due to unwanted attention related to his criminal convictions.

In November 2011, the requirement that he register as a sex offender in Ohio expired. Tynes applied to more than 20 law schools and attended the only school that accepted him—Northern Kentucky University’s Salmon P. Chase College of Law. He fully disclosed his felony convictions and incarceration in his law school applications. He has not been charged with any other offenses since his release, although he admitted to the panel that he had entered a sexually oriented Internet chat room for adults more than 10 years earlier. This isolated incident did not involve minors.

The Cincinnati Bar Association admissions committee referred Tynes to the Ohio Lawyers Assistance Program (“OLAP”) for a psychological evaluation. Dr. Jeffrey Smalldon, a forensic psychologist, concluded that Tynes did not have any mental health condition that would prevent him from responsibly practicing law and that his admission would not jeopardize the public. Tynes entered into a five-year OLAP mental-health recovery contract in September 2013 that required him to regularly attend psychotherapy sessions. The therapist testified that he had no meaningful concerns about Tynes’s ability to function as an attorney and that he did not believe that Tynes posed a significant risk of recidivism.

Applicants must prove by clear and convincing evidence that they possess “the requisite character, fitness, and moral qualifications” to practice law. The Ohio rules provide a nonexhaustive list of factors to be considered in assessing character and fitness, the most relevant factor in Tynes’s case being his felony convictions, which required consideration of additional factors, such as whether his admission would reduce the public’s confidence in the legal profession. The Board is also charged with considering 10 essential eligibility requirements, notably including the ability to exercise good judgment; the ability to avoid acts that exhibit disregard for the health, safety, and welfare of others; and the ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.

The Board found that Tynes’s record demonstrated a disregard for the law and for the health, safety, and welfare of the girls he solicited. It determined that admitting a sex offender to the bar would undermine the public’s perception of and confidence in the legal profession. Therefore, it recommended that the Court deny Tynes’s application and not permit him to reapply.

Tynes objected to the Board’s recommendation and argued that his felony convictions were more than 17 years ago, that he has been punished, and that his conduct since his release shows that he is rehabilitated. He also argued that the Court has typically imposed indefinite suspensions rather than permanent disbarment on attorneys who have engaged in similar misconduct. The Court acknowledged that Tynes had been “a productive and law-abiding citizen since his release from confinement” but noted significant lingering concerns about his honesty and integrity during the admissions process. Specifically, Tynes had attempted to minimize his culpability by first claiming that he never had any intention of meeting the first young girl and then suggesting that the second girl was a “civilian vigilante.” Additionally, the Court noted that Tynes had not pursued mental health treatment “in earnest” until it was recommended by the admissions committee and Dr. Smalldon in 2013. Therefore, the Court found that Tynes had not met his burden of proving his character and fitness and overruled his objection to the Board’s findings and recommendation that his application not be approved.

The Court found, however, that a permanent bar to further applications by Tynes in the future was not warranted. Citing Ohio admissions and disciplinary cases involving similar misconduct, the Court noted that it had recognized the possibility of rehabilitation of the applicants and attorneys in those cases. Based upon Tynes’s good conduct since release from incarceration, his ongoing mental health treatment, and his participation in OLAP, the Court stated that “he may soon be able to carry his burden of proving that he possesses the requisite character, fitness, and moral qualifications to practice law in Ohio.” The Court sustained Tynes’s second objection to the Board’s recommendation and ordered that he may reapply by filing an application for the July 2018 or a later bar examination and establishing his qualifications.

Miscellaneous

Requiring an out-of-state attorney to maintain an office in the state; Privileges and Immunities Clause

Schoenefeld v. Schneiderman, — S. Ct.—, 2017 WL 1366736 (Mem) (April 17, 2017)

This case was reported in four earlier issues of the Bar Examiner (Vol. 80, No. 1, March 2011; Vol. 81, No. 1, March 2012; Vol. 83, No. 2, June 2014; and Vol. 85, No. 3, September 2016). The following summarizes the latest developments in the case.

The U.S. Supreme Court denied review of the decision by the United States Second Circuit Court of Appeals rejecting Schoenefeld’s claim that New York’s in-state office requirement violates the Privileges and Immunities Clause, U. S. Const. art. IV, § 2. The Association of Professional Responsibility Lawyers, the Association of Corporate Counsel, and the New Jersey State Bar Association each had filed amicus curiae briefs in support of the request for review. As noted in previous summaries of this case, Ekaterina Schoenefeld is licensed to practice law in New York, New Jersey, and California. New York requires any nonresident member of the New York bar to maintain an office in the state for the transaction of law business. Schoenefeld is a resident of New Jersey and maintains an office in New Jersey but not in New York.

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