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Ohio Legal Ethics Narrative
VIII Maintaining the integrity of the profession
Ohio Rule 8.1 differs in a number of respects from the Model Rule. Those differences are as follows:
Ohio deletes the Model Rule introductory language ("An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter shall not:") and substitutes the following:
In connection with a bar admission application or in connection with a disciplinary matter, the lawyer shall not do any of the following:
Division (a) is identical to the Model Rule.
Division (b) differs in the following respects: Ohio inserts at the outset "in response to a demand for information from an admissions or disciplinary authority," before "fail to disclose"; substitutes after "fail to disclose" "a material fact" in lieu of the Model Rule language "a fact necessary to correct a misapprehension known by the person to have arisen in the matter,"; after "knowingly fail to respond", deletes the Model Rule language "to a lawful demand for information from an admissions or disciplinary authority".
The following section of the Ohio Code of Professional
Responsibility is listed in the Correlation Table (Appendix A to the
Rules) as related to Ohio Rule 8.1: DR 1-101.
(Although not mentioned in the table, DR 1-103(B) also is related
to Rule 8.1(b).)
- Primary Ohio References: Ohio Rule 8.1; Gov Bar R I
- Background References: ABA Model Rule 8.1
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §1.7
- Commentary: ABA/BNA § 21:101; Wolfram §§ 15.2, 15.3
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.7 (1996).
The very first Ethical Consideration in the former Ohio Code of Professional Responsibility stated as a "basic tenet" that "every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence." OH EC 1-1. Assuring that lawyers meet this standard starts with controls on admission to the bar. See Gov Bar R I, discussed below in sections 8.1:210-:240.
Admission is justified only if "the applicant's record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them and demonstrates that the applicant satisfies the essential eligibility requirements for the practice of law as defined by the Board [of Commissioners on Character and Fitness]." Gov Bar R I 11(D)(3).
Ohio Rule 8.1, in turn, speaks more specifically to the duties of a lawyer with respect to the lawyer's own application or the application of others for admission to the bar. These rules are discussed in sections 8.1:300-:400, together with the similar duties imposed with respect to disciplinary matters.
There are two state-wide bar admission agencies in Ohio. The first is the Board of Bar Examiners, consisting of eighteen members of the Ohio Bar; it is "responsible for examination of applicants for admission to the practice of law in Ohio," including preparing and grading bar examination essay questions. See Gov Bar R I 4(B), 5. The second agency is the Board of Commissioners on Character and Fitness, consisting of twelve Ohio Bar members, one from each appellate district. It "[s]upervise[s] and direct[s] the regional or local bar association admission committees in the investigation of the character, fitness, and moral qualifications of applicants for admission to the practice of law." Gov Bar R I 10(B)(2). It also hears appeals by applicants who have been given something other than an unqualified approval (which means they have been disapproved, see Gov Bar R I 11(F)(1)) by a local admissions committee. Id. at I 12. The role of the regional and local bar association admissions committees is set forth at Gov Bar R I 11.
Admission to the practice of law in Ohio is dealt with in Gov Bar R I. That rule covers preliminary registration requirements (I 2), application for the bar exam (I 3), bar examiners (I 4; see section 8.1:210), the bar examination (I 5; see section 8.1:210), the Multistate Professional Responsibility Exam (MPRE) (I 6), application for reexamination (I 7), induction (I 8), admission without examination (I 9; see section 8.1:230), Board of Commissioners on Character and Fitness (I 10; see section 8.1:210), character investigations by admission committees (I 11), appeals to Board of Commissioners on Character and Fitness (I 12; see section 8.1:210), confidentiality of character and fitness matters (I 13), admissions fund (I 14), and publication of list of applicants for admission (I 15), in addition to the general requirements for admission in Gov Bar R I 1, set forth below.
The general requirements of Gov Bar R I 1 are as follows: the applicant must
be at least 21 years of age
have an undergraduate bachelor's degree
have a J.D. or L.L.B. degree
demonstrate and be approved as to requisite character, fitness, and moral qualifications
pass the Ohio bar examination and the MPRE (or be approved for admission without examination under I 9; see section 8.1:230); and
take the oath of office set forth in I 8(A).
Of these, the necessity to show the requisite character, fitness and moral qualifications is the one most open to interpretation. In assessing an applicant's showing in this regard, the Board of Commissioners on Character and Fitness considers the following "essential eligibility requirements for the practice of law":
- The cognitive capacity to learn, to recall what has been learned, to reason and to analyze.
- The ability to communicate clearly with clients, attorneys, courts, and others;
- The ability to exercise good judgment in conducting one's professional business;
- The ability to conduct oneself with a high degree of honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations;
- The ability to conduct oneself with respect for and in accordance with the law and the Code of Professional Responsibility [the reference will presumably be changed to the Rules of Professional Conduct];
- The ability to avoid acts that exhibit disregard for the health, safety and welfare of others;
- The ability to conduct oneself diligently and reliably in fulfilling all obligations to clients, attorneys, courts, and others;
- The ability to use honesty and good judgment in financial dealings on behalf of oneself, clients, and others;
- The ability to comply with deadlines and time constraints; and
- The ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.
Ohio Board of Commissioners on Character and Fitness, Definitions of Essential Eligibility Requirements for the Practice of Law (which can be found online at www.sconet.state.oh.us/Admissions/application/03req/default.asp and at www.sconet.state.oh.us/admissions/pdf/ESSENTIAL_ELIGIBILITY_REQUIREMENTS.pdf). The Ohio Supreme Court also has looked to these requirements when reviewing bar admission cases that turn on character and fitness issues. See In re Application of Head, 114 Ohio St.3d 29, 2007 Ohio 2550, 867 N.E.2d 824, at para. 19; In re Application of Stewart, 112 Ohio St.3d 415, 2006 Ohio 6579, 860 N.E.2d 729, at paras. 12, 13.
In addition, the Board has identified a list of factors to be considered in making a recommendation as to a candidate's character and fitness and the weight such factors should be given:
Factors Considered in Making Character and Fitness Determinations
Before making a recommendation about an applicant's character, fitness, and moral qualifications, an Admissions Committee or the Board considers the following factors:
- commission or conviction of a crime;
- evidence of an existing and untreated chemical (drug or alcohol) dependency;
- commission of an act constituting the unauthorized practice of law;
- violation of the honor code of the applicant's law school or any other academic misconduct;
- evidence of a mental or psychological disorder that in any [way] affects or, if untreated, could affect the applicant's ability to practice law in a competent and professional manner;
- a pattern of disregard of the laws of Ohio, another state, or the United States;
- failure to provide complete and accurate information concerning the applicant's past;
- false statements, including omissions;
- acts involving dishonesty, fraud, deceit, or misrepresentation;
- abuse of legal process;
- neglect of financial responsibilities;
- neglect of professional obligations;
- violation of an order of a court;
- denial of admission to the bar in another jurisdiction on character and fitness grounds; and
- disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.
Weight and Significance Given to Prior Conduct
The review of an applicant focuses on the applicant's present character, fitness, and moral qualifications. The following factors are considered in assigning weight and significance to an applicant's prior conduct:
- age of the applicant at the time of the conduct;
- recency of the conduct;
- reliability of the information concerning the conduct;
- seriousness of the conduct;
- factors underlying the conduct;
- cumulative effect of the conduct;
- evidence of rehabilitation;
- positive social contributions of the applicant since the conduct;
- candor of the applicant in the admissions process; and
- materiality of any omissions or misrepresentations.
Ohio Board of Commissioners on Character and Fitness, Summary of Character and Fitness Process in Ohio (emphasis in original). (The Summary can be found online at www.sconet.state.oh.us/admissions/charfitness_board/CFProcess.pdf). These two lists are also set forth in Gov Bar R I 11(D)(3) & (4).
In the character and fitness investigative process, the burden is on the applicant to prove “by clear and convincing evidence” that he or she “possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.” Gov Bar R I (11)(D)(1). A case in which this strict standard seemed to play a part in the Court’s decision not to approve an application for admission is In re Application of Wagner, 119 Ohio St.3d 280, 2008 Ohio 3916, 893 N.E.2d 499. Ms. Wagner had a DUI on her record and her explanation of it and related matters in submissions to the character and fitness investigators left “some reservations about her willingness to accept responsibility for her conviction and initial nondisclosure.” Id. at para. 5. Despite these reservations, her application was initially approved, but the Board of Commissioners on Character and Fitness exercised its authority sua sponte to investigate further, Gov Bar R I (10)(B)(2)(e), and deferred the date when she would be permitted to take the bar from February 2008 to July 2008. In adopting the Board’s disposition, the Court expressly noted that the Board, “citing the lack of clear and convincing evidence,” found that applicant’s shortcomings ‘“bring into question her trustworthiness, diligence, and reliability.’” Continuing,
“her conduct can be construed as reflecting dishonesty or at least a failure to provide complete and accurate information about her past. Her failure to pay her [DUI] fines promptly suggests perhaps a neglect of financial responsibilities. The totality of the evidence presented suggests a failure to accept the responsibilities placed upon her and a lack of mature respect for the law.”
Id. at paras. 17-18 (emphasis added). As the italicized words indicate, “applicant has yet to sustain her burden of proof.” Id. at para. 19.
A representative sampling of some of the more recent Ohio Supreme Court decision illustrating how various of these factors have been applied follows.
Numerous cases address materially false statements or omissions in the admission or disciplinary process, as well as the failure to respond to a demand for information from admission or disciplinary authorities. This case law is set forth below in sections 8.1:300 (false statements) and 8.1:400 (duty to respond).
In addition, the following categories present themselves with some regularity:
Criminal activity or other conduct reflecting disregard for the law or other rules of conduct. E.g., In re Application of Rogers, 119 Ohio St.3d 43, 2008 Ohio 3191, 891 N.E.2d 736 (DUI charge, which was ultimately dismissed; also pleaded no contest to charge of sexual imposition; these episodes of “serious wrongdoing in his past,” together with problems relating to candor and financial responsibility, causes Court to defer the time when Rogers can reapply to February 2009). In re Application of Howard, 111 Ohio St.3d 220, 2006 Ohio 5486, 855 N.E.2d 865 (failure to provide clear and convincing evidence of requisite character; “applicant’s . . . admission materials are saturated with these three ethical impediments,” id. at para. 6, i.e., the factors listed in Gov Bar R I 11(D)(3)(a), (d) & (f) (commission of crimes, academic misconduct, and habitual disregard for the law)); In re Application of Olterman, 106 Ohio St.3d 383, 2005 Ohio 5324, 835 N.E.2d 370 (failure to show requisite fitness based, inter alia, on “applicant’s record of criminal and traffic violations and his dishonesty [about these matters] on his law school application.” Id. at para. 13.). Some of the cases discussed in section 8.1:300 (false statements and/or omissions) involved lying about criminal or other misconduct. See, e.g., in addition to Howard, In re Application of Dabney, 107 Ohio St.3d 40, 2005 Ohio 5834, 836 N.E.2d 573; In re Application of Bagne, 102 Ohio St.3d 182, 2004 Ohio 2070, 808 N.E.2d 372; In re Application of Barilatz, 91 Ohio St.3d 396, 746 N.E.2d 188 (2001); In re Application of Wylie, 89 Ohio St.3d 471, 733 N.E.2d 588 (2000); In re Application of VanDenBossche, 88 Ohio St.3d 158, 724 N.E.2d 405 (2000).
Financial neglect. Failure to meet financial responsibilities often figures in the denial or postponement of the admissions process. Illustrative cases include: Rogers supra (poor credit card history); In re Application of Kline, 116 Ohio St.3d 185, 2007 Ohio 6037, 877 N.E.2d 654 (“A bar applicant’s tendency toward fiscal irresponsibility makes him a risk for entrustment with the duties owed clients, adversaries, and other in the practice of law.” Id. at para. 10); In re Application of Stewart, 112 Ohio St.3d 415, 2006 Ohio 6579, 860 N.E.2d 729 (applicant’s “neglect of financial responsibilities weighs against the approval”; “[f]inancial irresponsibility alone is enough to disapprove a bar candidacy or bar exam application . . .,” id. at paras. 18, 19); In re Application of Ford, 110 Ohio St.3d 503, 2006 Ohio 4967, 854 N.E.2d 501 (referring to applicant’s “long-standing pattern of living beyond his means” and “tendency toward financial irresponsibility,” id. at paras. 18, 22); In re Application of Conrad, 109 Ohio St.3d 302, 2006 Ohio 4483, 853 N.E.2d 307 (one of a number of factors resulting in denial was applicant’s inability to address satisfactorily his “tax-related financial obligations,” id. at para. 14); see also In re Application of Manayan, 102 Ohio St.3d 109, 2004 Ohio 1804, 807 N.E.2d 313, discussed in section 8.1:230, and In re Application of Bland, 93 Ohio St.3d 414, 755 N.E.2d 342 (2001), discussed in section 8.1:400.
An interesting 2007 decision on the financial responsibility factor is In re Application of Holbrook, 116 Ohio St.3d 248, 2007 Ohio 6095, 877 N.E.2d 984. The applicant in the Holbrook case, along with her husband, got into financial difficulties on a variety of fronts, ending with the filing of a bankruptcy petition. The evidence showed among other things, that, after failing to make further payments on the Kentucky house they owned, which went into foreclosure, they moved to Ohio, bought a house for $500,000+, and applicant enrolled as a student at Capital University Law School. While there, she drove a Mercedes Benz, did not work or seek employment, and the couple accumulated additional debt, including applicant’s law school tuition. After failing to make the required payments on the Ohio house, the couple moved into a motel and then rented. Given this sorry state of financial affairs, the issue was essentially one of whether her husband's compulsive gambling was a significant cause of their financial downfall and the extent to which applicant had knowledge thereof. The Board found that the gambling did not cause their financial situation, of which applicant had "some understanding"; the Court disagreed. As a result, applicant’s ability to reapply for Ohio admission was moved forward to February 2008 rather than July 2008, as the Board had recommended. In support of this modification, the Court concluded that applicant was unaware of her husband's "staggering gambling losses [which] had jeopardized the financial health of his company and his family's personal finances." Id. at para. 13.
Chemical dependency problems. E.g., In re Application of Alban, 116 Ohio St.3d 190, 2007 Ohio 6043, 877 N.E.2d 658 (history of alcohol and drug abuse and related criminal offenses (DUI, “attempted” possession of crack cocaine) while in law school; reapplication permitted at later date in order for applicant to demonstrate continued compliance with his recent contract with OLAP); In re Application of Conrad, 110 Ohio St.3d 302, 2006 Ohio 4483, 853 N.E.2d 307 (even where applicant had become “drug free,” a “history of drug and alcohol use, and the criminal and traffic charges that resulted . . ., raise some concern about [applicant’s] fitness to practice law,” id. at paras. 9, 13); In re Application of Ralls, 109 Ohio St.3d 487, 2006 Ohio 2996, 849 N.E.2d 36 (“‘This is a case where the applicant does not get it. The applicant appears to have an alcohol problem but refuses to accept that fact,’” id. at para. 10 (quoting the panel)); In re Application of Olterman, 106 Ohio St.3d 383, 2005 Ohio 5324, 835 N.E.2d 370 (failure to show requisite character and fitness given applicant’s past problems with alcohol); In re Application of Wessel, 94 Ohio St.3d 212, 761 N.E.2d 1036 (2002), discussed in section 8.1:400.
For a case in which all three of the above concerns were raised, see In re Application of Phelps, 116 Ohio St.3d 312, 2007 Ohio 6459, 878 N.E.2d 1037 (applicant had DUI arrests and possible related substance-abuse problems, and failed to satisfy two civil judgments against her, as well as “having received several parking tickets, many of which were unpaid, id. at para. 2).
Mental health problems. E.g., In re Application of Bell, 112 Ohio St.3d 530, 2007 Ohio 610, 861 N.E.2d 533 (applicant, under treatment for post-traumatic stress disorder, could not establish requisite fitness to practice, given her “outbursts” during and after panel hearing and her refusal to authorize further medical/psychological evaluation of cause of such outbursts); In re Application of Bower, 65 Ohio St.3d 429, 605 N.E.2d 6 (1992) (applicant failed to demonstrate fitness to practice, given mental health concerns, including actions indicating mental instability and possible paranoia). See also In re Application of Rogers, 119 Ohio St.3d 43, 2008 Ohio 3191, 891 N.E.2d 736 (instances of being “unable to appropriately manage his behavior,” such as 4:00 a.m. visit to apartment of woman whose affections he was apparently seeking to keep or regain and pounding on her door for 20 minutes).
A most unusual mental health case was presented in In re Application of Blackwell, 116 Ohio St.3d 530, 2007 Ohio 6041, 880 N.E.2d 886. Blackwell’s July 2005 bar exam results were disqualified for failure to follow testing protocol – i.e., he continued to write after time had been called. The Court found applicant to be psychologically unfit for the practice of law and approved the like conclusion of the character and fitness board. He was permitted to reapply to take the February 2009 exam, on conditions set by the Court. The background facts were as follows: Applicant had failed the bar exam in July 2000, February 2001, and July 2003. The July 2003 exam also had resulted in charges that he had continued to write after the allotted time. After the 2005 exam and the charge that applicant had again violated testing protocol, the Board invoked its sua sponte authority to investigate this second instance. The investigation disclosed that applicant had changed one word in his answer to an essay question after time had expired. He did so, according to his testimony, because he wanted his answer to be “perfect.” But then, after the exam, he obsessed over it and sought to change the answer back, because he did not want to have undue advantage over other applicants. A psychologist, testifying at the hearing at applicant’s request, stated that applicant’s obsessive/compulsive personality traits rendered him impaired under six of the ten Essential Eligibility Requirements for the practice of law. Moreover, applicant had also failed to provide essential information on his updated questionnaire about being sued for unpaid tuition by his law school or about his four arrests for traffic violations. Given all of these facts, it is not surprising that the Court upheld the recommendation of the character and fitness board’s conclusion that Blackwell did not possess the requisite character and fitness. As the matter was summed up by the Court,
[i]n addition to the manifestations of his inability to comply with time constraints generally, he has demonstrated eccentric and irrational thinking that [the psychologist] attributes to his psychological disorder and abnormal personality traits. . . . We therefore . . . agree that the severity of applicant’s condition warrants the character and fitness board’s recommended disapproval.
Id. at para. 33.
Another unusual case involving character and fitness issues in this category is In re Application of Head, 114 Ohio St.3d 29, 2007 Ohio 2550, 867 N.E.2d 824. The applicant sought special accommodations when sitting for the Ohio bar exam. During her first semester law school exams, cognitive abnormalities had caused her to panic, resulting in her not being able to complete the exams within the allotted time. The special provisions subsequently provided by the law school (50% more time allotted while taking exams in a room by herself) were those she sought with respect to the bar exam. The Board of Bar Examiners denied her request but advised her that an appeal to the Board chairman was available. The applicant had had prior social contact with the chairman, primarily through her social and professional relationship with the chairman's wife, who was an attorney at the firm where applicant was a law clerk. Applicant sent the chairman an extensive email, ostensibly for the purpose of asking advice on how to present her case, but in fact inappropriately seeking to take advantage of their acquaintance through "impassioned pleas and repeated references to [the chairman's] wife." Id. at para. 12. This conduct reflected adversely on the applicant's character and fitness, resulting in disapproval of the application to take the next available examination. As stated by the Court:
The applicant disregarded these requirements [those set forth in Gov Bar R I 11(D)(3) and in Definitions of Essential Eligibility Requirements for the Practice of Law Nos. 3, 4, 5, and 10] when she used her friendship with the Morrisons to urge the Chairman of the Board of Bar Examiners to grant her request for special accommodations. The board thus appropriately recommended disapproval of the applicant's application to take the February 2007 bar examination. But citing the strength of her character evidence, the board further recommended that the applicant be permitted to apply to take the July 2007 bar examination. We also accept this recommendation.
Id. at para. 19.
While uncontrolled substance abuse or mental illness may result in a denial of admission on character and fitness grounds, a good faith showing that the applicant recognizes the problem and is attempting to deal with it often results only in postponement of the date when the applicant can sit for the bar. E.g., In re Application of Olterman, 106 Ohio St.3d 383, 2005 Ohio 5324, 835 N.E.2d 370.
Other. In In re Application of Kohler, 115 Ohio St.3d 11, 2007 Ohio 4261, 873 N.E.2d 818, the applicant had passed the February 2006 bar examination. He was not admitted, however, because subsequent to passing the bar, applicant’s law-firm employer (applicant had worked there as a law clerk) informed the Bar Admissions Office that the applicant had misrepresented matters to the firm and clients of the firm – he was expected to prepare and file bankruptcy papers for firm clients but did not, even though he reported that he had. Upon receipt of this information, the Board of Commissioners on Character and Fitness invoked its continuing investigative authority under Gov Bar R I 10(B)(2)(e) and, after a panel hearing, denied his admission. The Court affirmed, stressing that “[h]onesty is the cornerstone of all obligations incumbent on all members of the legal profession,” id. at para. 10, and Kohler had failed to meet that standard:
Kohler misled the clients and his supervisor from October 2005 until March 8, 2006, by repeatedly lying in response to requests for status reports. He fabricated documents, including two notices for creditor meetings and a court order allowing a continuance of a creditor meeting, complete with a forged signature purporting to be that of the bankruptcy court clerk.
Id. at para. 6. Because the applicant admitted his wrongdoing, reported it to his supervisor at the firm, and showed contrition for it, and because it occurred in large part due to his inexperience, the Court did not permanently bar him from admission, but rather allowed him to reapply for admission in February 2008, including again undergoing the character and fitness examination, without having to retake the bar exam.
In In re Application of Stewart, 112 Ohio St.3d 415, 2006 Ohio 6579, 860 N.E.2d 729, the applicant was disapproved because of his litigiousness and combativeness, which were negative factors under Essential Eligibility Requirements Nos. 5 – ability to conduct oneself with respect for and in accordance with law and Code – and 10 – ability to conduct oneself professionally and in manner engendering respect for law and profession. In a similar vein is In re Application of Mitchell, 119 Ohio St.3d 38, 2008 Ohio 3236, 891 N.E.2d 732, where Mitchell’s application to take the bar was disapproved, based on, acting pro se, his persisting in lodging questionable legal claims and accusations, such as fraud, against counsel who had opposed him in his failed suit for wrongful discharge. As the Supreme Court stated, “the applicant’s unwarranted attacks against opposing counsel and repeated and unfounded contentions in the [discharge] litigation revealed a singular lack of the good judgment necessary to the practice of law.” Id. at para. 18.
An interesting 2003 case involving the requisite character, fitness, and moral qualifications is In re Application of Singh, 101 Ohio St.3d 8, 2003 Ohio 6622, 800 N.E.2d 1112. The applicant, born and educated in India, applied for admission to the Ohio bar. His application was denied, primarily because of his seeming inability to communicate effectively in English. (There were potential moral/character problems in the background, but his less-than-adequate attempt to deal with these seemed to flow largely from the language deficiency.) The Board found that Singh lacked the requisite "fitness" to practice in Ohio, and the Supreme Court affirmed:
The board was correct to distinguish the concept of fitness from that of character. Our precedents teach that the concept of fitness to practice law is not limited to the applicant's moral fitness [citing cases denying application based upon applicant's mental health fitness].
In light of this applicant's deficiencies in speaking and writing English and, in comprehending the speech and writing of others, we share the board's doubts about his fitness to practice law. Communication skills are central to the practice of law.
Id. at paras. 57-58.
Gov Bar R I 10-13 were amended effective February 1, 2003 to address the character and fitness standards and the review process for bar applicants with felony records. Gov Bar R I 11(D)(5) was added, and other amendments, referencing (D)(5), were made. As stated in the Staff Comments:
While the amendments do not create a per se admissions bar for applicants with felony records, they do impose additional substantive and temporal requirements on those applicants.
19 Page's Ohio Rev Code Ann 219 (2004). Thus, under the amendments, no felon is eligible for admission until five years after release from parole, probation, or similar post-release control, or from prison if no post-release control or probation was imposed. Also, any felon/applicant must without exception undergo review by the Board of Commissioners on Character and Fitness. For the details of these and other requirements, see Gov Bar R I 10-13.
Admission on Motion (termed "Admission Without Examination" in Ohio) is covered in Gov Bar R I 9. To apply, an applicant must
be admitted in another jurisdiction;
have practiced, judged, or taught law school for five of the last ten years prior to application;
not have taken and failed an Ohio bar examination;
not have engaged in the unauthorized practice of law;
be a U.S. citizen or resident alien;
intend to practice in Ohio on an active, continuing basis;
be 21 years of age and have an undergraduate bachelor's degree and a J.D. or L.L.B. degree from an accredited law school; and
if applicable, have registered pursuant to Gov Bar R VI 3 (corporate status).
Gov Bar R I 9(A)(1)-(8), (B)(1)-(5). Other procedural steps that must be met are set forth in id. at 9(C)-(E), including submission of a certificate in good standing from the jurisdictions in which the applicant is admitted to practice, Gov Bar R I 9(C)(3), and review and approval as to character, fitness, and moral qualifications. Gov Bar R I 9(D). See also Gov Bar R I 1(D) (requiring demonstration of requisite character, fitness, and moral qualifications prior to taking the Ohio bar or "[p]rior to . . . being admitted without examination pursuant to Section 9 . . . ." For a case in which an applicant for admission without examination was disapproved for failing to demonstrate the required character, fitness, and moral qualifications, see In re Application of Manayan, 102 Ohio St.3d 109, 2004 Ohio 1804, 807 N.E.2d 313 (citing Gov Bar R I 9(D), Court disapproved applicant who, while resident in Hawaii, had failed to pay federal and state income taxes for a number of years, even though he had satisfied his delinquencies by time of Supreme Court review; "the fact remains that he seriously mismanaged his expenses to the extent he could not pay the taxes on his income as a practicing lawyer. This mismanagement certainly reflects poorly on applicant's character, fitness, and morals. The board thus justifiably disapproved his application for admission." Id. at para. 16.).
The Supreme Court reviews all applications for admission without examination and "in its sole discretion shall approve or disapprove" same. Gov Bar R I 9(F). In In re Application of Stage, 81 Ohio St.3d 554, 692 N.E.2d 993 (1998), the Supreme Court exercised that discretion to approve an application (or at least the character and fitness aspect of it), even though the applicant was found to have engaged in the unauthorized practice of law. (As noted above, Gov Bar R I 9(A)(4) provides that the applicant for admission without examination may apply if he or she "has not engaged in the unauthorized practice of law.") The applicant had used the term "General Counsel" on the letterhead of the agency where she had been hired as general counsel and the title "Attorney at Law" on her personal stationery. The Court nevertheless held as follows:
In the case at bar, there was no evidence that Stage actively engaged in the unauthorized practice of law beyond mere use of the inappropriate designations. Because the circumstances do not indicate a deliberate attempt to mislead and because the applicant has either ceased using or added a disclaimer to the inappropriate designations, we find that the applicant has the requisite character, fitness, and moral qualifications for admission to the practice law in the state of Ohio. The court will now consider her pending application for admission without examination pursuant to Gov. Bar R. I (9)(F).
Id. at 559, 692 N.E.2d at 996-97. See also In re Application of Fletcher, 82 Ohio St.3d 191, 694 N.E.2d 1323 (1998) (subsequent to being approved for admission without examination, but before presentation to Supreme Court, lawyer was reported to have left state permanently and failed to respond to inquiries made in investigation of whether that was so; based on these facts, applicant not approved for current admission but permitted to reapply in two year's time, conditioned on explanation of his failure to pursue current application).
In Gov Bar R I 9, the section dealing with admission without examination (see section 8.1:230), subsection I 9(H) makes clear that, while such an applicant cannot practice in Ohio prior to his or her presentation to the Supreme Court in accordance with subsection I 9(F), this limitation does not apply "to participation by an attorney not yet admitted to practice in Ohio in a cause being litigated in Ohio when such participation is with leave of the judge hearing such cause." I 9(H). This pro hac vice ("for this occasion only") exception is, of course, not limited to attorneys applying for admission to the Ohio bar without examination and "not yet admitted," but can be granted to any attorney not licensed in Ohio, for purposes of the Ohio litigation in which the lawyer is involved.
Ohio authority dealing with pro hac vice admission, which is a matter left to the sound discretion of the court before whom the lawyer seeks to appear, is set forth in section 5.5:230. That section also deals with revocation of pro hac vice status.
- Primary Ohio References: Ohio Rule 8.1(a)
- Background References: ABA Model Rule 8.1(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.8, 1.9
- Commentary: ABA/BNA §§ 21:301, 101:201; Wolfram § 15.3.1
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 1.8, 1.9 (1996).
Ohio Rule 8.1(a) prohibits a lawyer from "knowingly making a false statement of material fact" in connection with a bar admission application or a disciplinary matter.
The 8.1(a) obligation not to make false statements of material fact is absolute; it applies to all information the lawyer provides in connection with a bar admission application or a disciplinary matter, irrespective of whether the lawyer is volunteering information or is responding to a request or demand for information. The duty under Rule 8.1(b) is more narrowly tailored; it applies only when the lawyer is responding to a "demand" from an admissions or disciplinary authority and does so by failing to disclose a material fact or knowingly failing to respond. Of course, virtually every instance involving submission of information to an admissions or disciplinary agency is in response to an official inquiry or to forms that must be filled out -- in other words a "demand" that potentially implicates 8.1(b) as well as the ever-present 8.1(a) obligation. Whether Rule 8.1(a) or (b) applies will almost always turn on the nature of the lawyer's response: lying about material facts invokes 8.1(a), failing to disclose a material fact or not responding at all falls under 8.1(b).
Comment  states that the Rule 8.1 duty "applies to a lawyer's own admission or discipline as well as that of others." Rule 8.1 cmt. . The Model Rules Comparison to Rule 8.1 notes, however, that
Rule 8.1(a) is modified to strike the provision that that would make the rule applicable to bar applicants. The constraints and obligations placed upon applicants for admission to the bar are more appropriately and distinctly addressed in [Gov Bar R I].
Thus, all aspects of the bar application process by applicants will continue to be governed by the provisions of Gov Bar R I, which in its directive regarding investigation of the applicant's character and fitness expressly includes among the relevant factors whether the applicant has made any "[f]alse statements, including omissions." Gov Bar R I 11(D)(3)(h). See In re Application of Howard, 111 Ohio St.3d 220, 2006 Ohio 5486, 855 N.E.2d 865 (tending "to avoid or shade the truth during character and fitness proceedings, which constitutes a false statement or omission to be considered under … (D)(3)(h)," id. at para. 9).
Bar admission: As a result of this modification of the Model Rule language, Ohio Rule 8.1 applies with respect to bar admission applications to lawyers only after the fact -- if, after having been admitted, the lawyer is found to have made material misrepresentations or omissions on his own admission application (or in connection with an application on behalf of another), the Rule applies as stated in Comment , and such a lawyer is subject to discipline therefor. One such case, decided under the former OHCPR analog to Rule 8.1 (OH DR 1-101(A)) was Columbus Bar Ass'n v. Ewing, 75 Ohio St.3d 244, 661 N.E.2d 1109 (1996), in which an admitted attorney was sanctioned for having concealed, in response to bar application questions, that he had a real-estate license that had been suspended.
While there were few reported cases involving former DR 1-101(A) directly, the concerns addressed there are evidenced in the case law involving the bar application process itself. In numerous instances individuals have been denied bar admission or had their licenses revoked because of misstatements or omissions made in the application process, or because of failure to respond adequately to requests for information. As a general principle, a falsehood or deliberate failure to disclose requested information is improper, as long as the information is material. A flagrant example of failure to meet this basic standard of honesty and to supply required information is In re Application of Aboyade, 103 Ohio St.3d 318, 2004 Ohio 4773, 815 N.E.2d 383. Among other things, Aboyade falsified her law school grade transcript, changing her grade-point average from a respectable 2.96 to an honors-level 3.505 by switching twelve Cs to As and Bs. She then presented this fabricated transcript to potential employers, who relied on it in offering her a position as an associate. Sensing that all was not well, Aboyade sought to withdraw her Ohio bar application; her request was denied. Shortly thereafter, the state of South Carolina, where she was admitted, disbarred her, based on the transcript misconduct and other false statements. Not surprisingly, the Ohio Supreme Court permanently denied the applicant from applying for admission to the Ohio bar. In doing so, it cited the panel's finding that applicant had failed to carry her burden under Gov Bar R I 11(D)(1) as to her requisite character and fitness, and quoted with approval the following language from the panel's recommendation:
"[Applicant] has been dishonest with her transcript, her employers * * *, and the Supreme Court of South Carolina. Honesty is one of the basic and most important characteristics needed by a lawyer. [Applicant] has repeatedly demonstrated she completely lacks any shred of honesty. There is nothing
* * * to show that she has made any effort to change or to commence being truthful."
Id. at para. 14 (ellipses and bracketed material in original). Similarly, in In re Application of Hayes, 81 Ohio St.3d 88, 689 N.E.2d 547 (1998), the applicant was found unfit to practice and the Court's ruling prohibited him from ever being admitted in Ohio, where the panel, the Board, and the Court
found that applicant was not truthful, that he repeatedly lied under oath, that he lied to each group interviewing him, including the board's panel, as well as in depositions and transcripts introduced into evidence, and that he purposefully omitted relevant information from his Bar Application.
Id. at 88-89, 689 N.E.2d at 547. Such conduct reflects a lack of honesty and, as such, a general unsuitability for the practice of law. In accord, regarding the failure adequately to disclose facts that the admissions committee obviously thought were material is In re Application of Cureton, 87 Ohio St.3d 53, 717 N.E.2d 285 (1999), where the Court found the application deficient because the applicant, inter alia, had failed to provide certain information in his initial application, including the resolution of criminal charges pending against him, and in supplemental applications had again failed to provide all of the information requested. Similarly, in In re Application of Cvammen, 102 Ohio St.3d 13, 2004 Ohio 1584, 806 N.E.2d 498, the Court in at 4-to-3 decision barred the applicant from ever taking the bar in Ohio, as a result of what the majority concluded were "ethical infractions so permeat[ing] the admissions process that the applicant's honesty and integrity are shown to be intrinsically suspect . . . ." Id. at para. 22. (The Court found that in his bar-application responses and subsequent interviews applicant had lied and given hedged and inconsistent testimony concerning an "under-the-table" payment (unreported on his tax return) he had taken from a tenant in his job with a commercial real-estate leasing company.) The dissent thought the penalty too severe: "A permanent refusal is the equivalent of disbarment. Had the respondent committed similar acts after becoming an attorney, we would have given him at most an indefinite suspension . . . . [T]here was no theft involved and no clients harmed although the conduct involved dishonesty." Id. at para. 23.
While these issues involving false statements and omissions of material fact most often arise in considering an initial application for admission to the bar, they can arise in other contexts as well. For example, see Toledo Bar Ass'n v. Lockhart, 95 Ohio St.3d 135, 2002 Ohio 1758, 766 N.E.2d 596, where a suspended lawyer's petition for reinstatement was denied after she failed to notify the Court that at the time she verified in her petition that she possessed the requisite moral qualifications, she was under indictment for felony theft. And in In re Application of Sandler, 63 Ohio St.3d 372, 588 N.E.2d 779 (1992), the license of a recently admitted lawyer was revoked pursuant to the Commission on Character and Fitness's "sua sponte investigative authority under [Gov Bar R I 9(B)(2)(e)]" (now Gov Bar R I 10(B)(2)(e)), because he
(1) lied on his applications, (2) knowingly failed to promptly rectify those admissions and misrepresentations, (3) exhibited continued dishonesty during the investigation, and (4) lied while under oath during the hearing. . . . The panel stressed . . . that "[t]he record is replete with instances in which this applicant demonstrated a complete lack of honesty and integrity."
Id. at 373, 588 N.E.2d at 780 (ellipses added). For an initial admissions case in which the Board twice invoked its sua sponte investigative authority under Gov Bar R I 10(B)(2)(e), see In re Application of Yazdian, 112 Ohio St.3d 409, 2006 Ohio 6585, 860 N.E.2d 724.)
A similar revocation case is In re Dabney, 107 Ohio St.3d 40, 2005 Ohio 5834, 836 N.E.2d 573, in which the lawyer had failed to disclose on her application that she had been arrested and convicted five times for prostitution-related offenses in 1995; each time she falsified her identity to the arresting officers. (She had been admitted to the Ohio bar in 2003.) The Board on Character and Fitness recommended that her license to practice be revoked, pursuant to its authority to investigate "any matter brought to the attention of the Board after an applicant has been admitted . . . and alleging that the applicant made a materially false statement in, or deliberately failed to disclose any material fact in connection with, the applicant's application for admission to the practice of law." Gov Bar R I 10(B)(6) (emphasis and ellipsis added). The Supreme Court adopted the Board's recommendation, despite evidence of Dabney's rehabilitation. The Court emphasized that the history of dishonesty lasted eight years, "and that history rightly prompted the board to question whether Dabney had met her burden of proving [by clear and convincing evidence] her character and fitness to practice law." Id. at para. 13 (bracketed material added). Dabney was allowed to reapply for admission in February 2006 or later, at which time she would have to undergo a new character-and-fitness investigation. Approval of her character and fitness at that time would entitle her to readmission without having to retake the bar examination.
Often the misstatements or omissions involve an attempt to avoid full disclosure about criminal charges the applicant has faced. For example, in In re Application of Bagne, 102 Ohio St.3d 182, 2004 Ohio 2070, 808 N.E.2d 372, the applicant had shot a jogger in the neck with a BB gun from a moving car eleven years previously. His explanations of the incident, both in response to the Michigan bar (which denied him admission and concluded he could not reapply there until 2006) and to the Ohio Board on Character and Fitness, were incomplete and rife with inconsistencies:
Upon review, the board concluded that applicant seemed unwilling to consistently tell the truth or genuinely accept the consequences for his acts, however many years ago those acts occurred. The board was struck by applicant's need to correct even his own witness as to the degree of applicant's responsibility for shooting the jogger in 1991.
* * * *
. . . Thus, upon review, we agree that applicant has not demonstrated his current character, fitness, and moral qualifications for admission to the Ohio law. And because this record reveals more than one instance of applicant's reluctance to respond with total honesty, we modify the board's recommendation to a more commensurate disposition [reapplication in February 2005, rather than February 2004].
Id. at ¶¶ 18, 23.
Accord In re Application of Barilatz, 91 Ohio St.3d 396, 746 N.E.2d 188 (2001) (applicant permanently disapproved for admission, based on panoply of material omissions in response to application questions, including earlier rejection for admission to bar, failure to reveal that he was Florida resident, that he had been jailed for child-care arrearages and for contempt of court, and that he had pled guilty to misdemeanor after being charged with carrying concealed weapon); In re Application of Wylie, 89 Ohio St.3d 471, 733 N.E.2d 588 (2000) (applicant's application to register for admission to the bar disapproved because it was inaccurate, misleading, and incomplete, including failure to provide complete information about his criminal activity); In re Application of VanDenBossche, 88 Ohio St.3d 158, 724 N.E.2d 405 (2000) (failure to provide full and credible account of various criminal charges precludes applicant from sitting for current bar examination); In re Application of Carroll, 61 Ohio St.3d 60, 572 N.E.2d 657 (1991) (applicant's failure in response to questions in application to disclose that he had been charged in various criminal proceedings led to denial of his application to take bar); In re Application of McGraw, 47 Ohio St.3d 172, 538 N.E.2d 112 (1989) (application for admission to bar denied in part because of failure to list certain criminal convictions as required by questions in original applications for registration and examination).
The mere fact that the criminal records have been expunged or sealed does not affect the disclosure duty. As the Court explained in In re Application of Watson, 31 Ohio St.3d 220, 509 N.E.2d 1240 (1987):
When [the bar application forms ask] the applicant to "[s]tate whether your have been, or presently are . . . (1) a party to any action or legal proceeding, including civil, criminal, quasi-criminal, administrative, or any proceeding in a juvenile court," the question must be fully answered regardless of expungements, bond forfeitures, dismissals or similar terminations and must include all actions or legal proceedings occurring in any court including juvenile court. Failure to do so will constitute grounds for denial of an application for registration as a candidate for admission to the practice of law, or to take the bar examination, in the state of Ohio.
Id. at 221, 509 N.E.2d at 1241-42 (first bracketed material added). Accord In re Application of Carroll, 61 Ohio St.3d 60, 572 N.E.2d 657 (1991) (expunged criminal records must be disclosed); In re Application of McGraw, 47 Ohio St.3d 172, 538 N.E.2d 112 (1989) (same). Similarly, the bar admission rules and procedure grant the Board of Commissioners on Character and Fitness access to sealed criminal records and require the applicant to disclose expunged criminal records. See State v. Greene, 61 Ohio St.3d 137, 573 N.E.2d 110 (1991).
The misstatement or omission need not involve criminal activity. The applicant in In re Application of Creighton, 117 Ohio St.3d 253, 2008 Ohio 852, 883 N.E.2d 433, had been terminated from his job as public school teacher for improprieties with female students. Both on his law school application forms and on a supplement thereto, he falsely denied that he had ever been disciplined for unethical conduct as a member of any profession; as the Board stated, “‘[t]he statements on his application to register for admission to the Bar are similarly incomplete and misleading.’” Id. at para. 23. In In re Application of Ireland-Phillips, 71 Ohio St.3d 609, 646 N.E.2d 453 (1995), a bar applicant who lied about prior involvement in a civil action concerning an alleged forged check was found to lack the character and fitness to practice law at that time. Accord In re Application of Williams, 95 Ohio St.3d 107, 766 N.E.2d 143 (2002) (applicant disapproved for admission, based on false statement on application that he had left employment with city police department pursuant to "disability retirement" and on assertion to bar association interviewers that this information on application was true as stated; in doing so "Williams did not disclose in a forthright and honest manner the details surrounding his resignation from the Huber Heights police force." Id. at 108, 766 N.E.2d at 144.); In re Application of Panepinto, 84 Ohio St.3d 397, 704 N.E.2d 564 (1999) (false and incomplete answers on application with regard to multiple driver's licenses and suspensions, and termination or suspension from high school; although applicant was permitted to reapply at later time, three of the justices thought that his continued deception and failure to accept responsibility of his prior misdeeds by attempting to excuse or minimize them justified not permitting him to reapply for admission); In re Application of Calim, 82 Ohio St.3d 96, 694 N.E.2d 896 (1998) (omissions on application with respect to applicant's employment and financial history, and adverse judgment, and misrepresentation regarding status of child-support obligations); In re Application of Kantor, 79 Ohio St.3d 167, 680 N.E.2d 955 (1997) (application disapproved based, inter alia, on applicant's false answer on admissions application and failure to provide information during review process).
Misconduct with respect to bar application of another: As noted above, the Rule 8.1(a) duty applies as well in connection with the bar admission application of others. See Rule 8.1 cmt. . There appear to be no cases under the former disciplinary rule (OH DR 1-101(B)) dealing with this subject.
Disciplinary investigations: Unlike Rule 8.1, there was no provision under the Code expressly dealing with false statements made to disciplinary agencies investigating a grievance. Instead, the Code analog to Rule 8.4(c) (OH DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation)) was used to police false statements and misleading omissions in connection with disciplinary matters. See, e.g., Office of Disciplinary Counsel v. Brumbaugh, 99 Ohio St.3d 65, 2003 Ohio 2470, 788 N.E.2d 1076 (falsely representing to certified grievance committee of local bar association that he had paid off, with estate funds in his possession, interest owing on decedent's home to U.S. government agency); Cincinnati Bar Ass'n v. Florez, 98 Ohio St.3d 448, 2002 Ohio 1730, 786 N.E.2d 875 (providing false representations and fabricated evidence in response to disciplinary inquiry); Cincinnati Bar Ass'n v. Spitz, 89 Ohio St.3d 117, 729 N.E.2d 345 (2000) (respondent split fee with nonlawyer and then lied to bar association in letter denying that he had done so, submitted falsified invoice to bar association concerning payment to nonlawyer, and lied under oath about these matters at deposition by relator; indefinite suspension imposed). And see Ohio State Bar Ass'n v. Stern, 103 Ohio St.3d 491, 2004 Ohio 5464, 817 N.E.2d 14, where the Court dismissed an OH DR 1-102(A)(4) charge against a former prosecuting attorney, who had secretly videotaped a meeting with Disciplinary Counsel Office investigators (regarding a separate grievance that had been filed against the respondent) and who, when asked by the investigators whether the meeting was being taped, answered "no." The primary rationale behind the dismissal was the uncertainty concerning the extent to which a prior head injury suffered by respondent may have affected his actions ("this wild card that prevents us from reaching many firm certainties about what occurred," id. at para. 37); as a result, the majority of the Court found that the Board had not met its burden in proving a violation of 1-102(A)(4). The majority conceded the existence of "understandable apprehension about allowing respondent to escape discipline for what can only be characterized as lying to ODC investigators," id. at para. 25, and emphasized that its determination "is limited exclusively to this situation." Id. The three-justice dissent argued that "[s]uch situational ethics have no place in a lawyer discipline system." Id. at 41.
- Primary Ohio References: Ohio Rule 8.1(b)
- Background References: ABA Model Rule 8.1(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.45
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.45 (1996).
Ohio Rule 8.1(b) is more limited than MR 8.1(b) in two respects. First, the duty is imposed on lawyers only, not lawyers and bar applicants. Second, under the Model Rule there is a duty to volunteer information necessary to correct a misapprehension known to have arisen in the matter, in addition to the duty to not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority. Ohio Rule 8.1(b) requires only that in response to "a demand for information from an admissions or disciplinary authority," the lawyer
shall not . . . fail to disclose a material fact or knowingly fail to respond,
with respect to information other than that protected by Rule 1.6.
The following comments are in order: First, the placement of "knowingly." As written, the Rule is violated by the failure to disclose a material fact in response to a demand for information, whether the failure is inadvertent or otherwise, whereas a total failure to respond is a violation only if done "knowingly." Should not the knowingly requirement apply to both? Cf. In re Application of Hayes, 81 Ohio St.3d 88, 689 N.E.2d 547 (1998) (violation of Gov Bar R I premised, inter alia, on fact that applicant "purposefully" omitted material information, id. at 89, 689 N.E.2d at 547). Compare MR 8.1(b).
Second is the deletion of the Model Rule word "lawful" before "demand." Most likely this is adherence to the Code formulation of failing to disclose information "requested," rather than "lawfully requested," in former DR 1-101(A). It would have been helpful if this point had been directly addressed and explained, particularly since our research indicates that Ohio stands alone among Model Rule states in striking the word "lawful." It seems indisputable that the "lawful" requirement is implicit -- surely Ohio is not intending to impose a duty to respond to unlawful demands. Nevertheless, one wonders why this sort of tinkering was thought necessary.
It should be further noted that the case law generally does not read "lawful demand" as requiring a subpoena or other order; letters from disciplinary or admissions agencies requesting information constitute "lawful demands" under the Model Rule formulation. See ABA, Annotated Model Rules of Professional Conduct 559 (6th ed. 2007) (commentary).
Third, the Task Force provides an explanation for deleting the Model Rule language obligating a lawyer to volunteer information necessary to correct a known misapprehension, but the explanation strikes us as unpersuasive. The ABA Model Rules Comparison to Rule 8.1 states that Rule 8.1(b) is modified for "clarity." To the Task Force, the Model Rule language dealing with correction of a misapprehension "is too unwieldy and creates a standard too difficult for explanation and comprehension." Does this mean that Ohio lawyers are presumed to be unable to grasp the meaning of words that other jurisdictions have found intelligible? (So far as we are aware, only one other Model Rule state in the country has deleted this language.) If the Model Rule language is not to be incorporated, surely there are better reasons than this. Nor does the Task Force's follow-up sentence in the Model Rule Comparison make sense. It states that the elimination of the Model Rule language "does not lessen the standard of candor expected of a lawyer in bar admission or disciplinary matters." To say that elimination of the duty to volunteer information to correct a misapprehension does not "lessen the standard of candor" is a nonsequitur.
While the federal and state constitutional right against self-incrimination may of course be invoked in the bar admission or disciplinary setting, "a person relying on such a provision in response to a question . . . should do so openly and not use the right of nondisclosure as a justification for failure to comply with this rule." Rule 8.1 cmt. . While not readily apparent from the language of the comment (identical to MR 8.1 cmt. ), if the lawyer reasonably thinks the information demanded raises the prospect of criminal proceedings, the lawyer cannot be disciplined for refusal to testify about the conduct in question.
A demand for testimony in the regulatory proceeding that is not accompanied by constitutionally sufficient use immunity for the testimony is not a "lawful" demand for purposes of Model Rule 1.8(b) [sic 8.1(b)]. . . . Of course, if a lawyer is granted immunity, the Fifth Amendment will no longer apply, and the lawyer can be forced to testify.
2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 62.6, at 62-11 (3d ed. Supp. 2008) (bracketed material and ellipsis added). Although this explanation, utilizing the Model Rule "lawful demand" language, is not directly transferable to the Ohio formulation omitting "lawful," Fifth Amendment considerations take precedence, whether "lawful" is present or not. Thus a disciplinary or admissions authority may demand answers to incriminating questions only if immunity from criminal prosecution has been put in place. At that point, the expected results flowing from violation of Rule 8.1 are triggered: If the lawyer lies in response, he has violated 8.1(a); if he tells the truth and in the process reveals some other violation of the Rules, he may be disciplined for that violation; if he refuses to testify, he violates Rule 8.1(b). Hazard & Hodes, at 62-11, 62-12. Irrespective of use immunity, while invocation of the Fifth Amendment cannot itself be the basis for imposing discipline, it does not preclude a finding of disciplinary violation, if the charge is independently proven. See Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521, 2008 Ohio 91, 880 N.E.2d 467, at paras. 26-30, where the Court rejected respondent’s self-incrimination Fifth Amendment argument regarding his refusal to cooperate by first agreeing to provide federal income tax returns but then refusing to do so, because, among other reasons, he was found guilty of several other disciplinary violations over and above failure to cooperate. “Thus, unlike the attorney in Spevack [Spevack v. Klein, 385 U.S. 511 (1967)], respondent was not sanctioned solely on the basis of his invoking his Fifth Amendment privilege.” Id. at para. 29.
In addition to the cases cited in section 8.1:300 involving failure to disclose a material fact in response to a request/demand for information, there are a number of opinions under the former OHCPR involving an applicant's failure to make any response to a request by an admissions body for information. They include In re Application of Sherman, 117 Ohio St.3d 528, 2008 Ohio 1472, 885 N.E.2d 233 (applicant ignored all requests and notices and failed to appear for character-and-fitness hearings); In re Application of Bonetti, 117 Ohio St.3d 113, 2008 Ohio 503, 881 N.E.2d 1249 (same; “[h]aving failed to participate in the character-and-fitness-review process, the applicant is unable to sustain his burden of proof under Gov. Bar R. I(12)(C)(6) . . . .” Id. at para. 12. We suspect that Bonetti’s lack of cooperation may have stemmed from the fact that his chances weren’t all that good in any event – the sua sponte investigation by the Board was prompted by a report of the Office of the Comptroller of the Currency, United States Department of the Treasury, that he had misappropriated funds over a seven-month period while working at National City Bank. Also included in the background facts was an order from the Board of Governors of the Federal Reserve System “barring the applicant from further participation in the banking industry.” Id. at para. 6.); In re Application of Phelps, 116 Ohio St.3d 312, 2007 Ohio 6459, 878 N.E.2d 1037 (after appealing the adverse recommendation of the admissions committee, the matter was set for hearing, at which applicant failed to appear; “Phelp’s failure to appear before the panel is in and of itself sufficient grounds for disapproving her application,” citing Gov Bar I 12(C)(6). Id. at para. 7.); In re Application of Stewart, 112 Ohio St.3d 415, 2006 Ohio 6579, 860 N.E.2d 729 (failure timely to provide requested credit card statements); In re Application of Mefford, 104 Ohio St.3d 324, 2004 Ohio 6591, 819 N.E.2d 684 (failure to provide requested information concerning financial responsibility; application to sit for current examination disapproved); In re Application of Harris, 101 Ohio St.3d 268, 2004 Ohio 721, 804 N.E.2d 429 (same); In re Application of Wessel, 94 Ohio St.3d 212, 761 N.E.2d 1036 (2002) (failure to respond to request for additional information concerning arrest for possession of cocaine and charges of domestic violence and traffic offense; respondent permanently denied right to apply for bar admission); In re Application of Bland, 93 Ohio St.3d 414, 755 N.E.2d 342 (2001) (refusal to provide requested information about default on student loans; application to register for admission denied); In re Application of Fletcher, 82 Ohio St.3d 191, 694 N.E.2d 1323 (1998) (applicant for admission without examination not approved because of failure to respond to inquiries investigating whether applicant had left state permanently).
The first case applying Rule 8.1(b) is Stark County Bar Ass’n v. Marosan, 119 Ohio St.3d 113, 2008 Ohio 3882, 892 N.E.2d 447; Marosan was disbarred, given his extensive prior disciplinary record and his current violations, which included ignoring “relator’s investigative inquiries and fail[ure] to file an answer to the complaint,” thereby violating “Gov.Bar R. V(4)(G) and Prof.Cond.R 8.1(b) (both requiring a lawyer to cooperate in a disciplinary investigation).” Id. at para. 13.
Differences between Rule 8.1 and former disciplinary rules: While former OH DR 1-101(A) and 1-103(B) cover essentially the same ground as Ohio Rule 8.1, the differences are significant. First, the prohibition against materially false statements of fact and/or failure to disclose upon request, stated in DR 1-101(A), was limited to the lawyer’s own bar admission. (DR 1-101(B) prohibited a lawyer from “furthering” the application for admission of an unqualified candidate; this language has not been carried forward to the Rules.) The analogous Rule 8.1 ban on false statements of material fact and/or, in response to a demand, failure to disclose a material fact or to respond to the demand, is imposed with respect to both bar admission and disciplinary proceedings, and, as stated in Rule 8.1 cmt. , “applies to a lawyer’s own admission or discipline as well as that of others.” Second, the reporting obligation under DR 1-103(B) to supply unprivileged information upon proper request applied only to information about “another lawyer or a judge”; under Rule 8.1 a lawyer is also obligated to respond to a demand for information from an admissions or disciplinary body concerning the lawyer upon whom the demand is made. (Applicable under both regimes is Gov Bar R V 4(G), pursuant to which a lawyer must cooperate in disciplinary proceedings brought against that lawyer, as well as in proceedings against other lawyers. For a discussion of the duty to cooperate and the extent of the relevant subpoena power, see section 0.2:240.)
To our knowledge, there were no cases applying OH DR 1-103(B).
See also Ohio Rule 8.3 (duty to volunteer unprivileged knowledge of violation of Rules).
Protection from civil liability: An absolute privilege from civil liability applies to any statement made in connection with a disciplinary proceeding, as long as the statement bears some reasonable relation to the proceeding. Hecht v. Levin, 66 Ohio St.3d 458, 613 N.E.2d 585 (1993) (noting that this protection encourages lawyers to report attorney misconduct in accordance with DR 1-103(A) (see now Rule 8.3(a)) "without hesitation or fear of retaliation," id. at 463, 613 N.E.2d at 589). See sections 0.2:240, 1.1:510.
As stated in Ohio Rule 8.1(b), "this rule does not require disclosure of information otherwise protected by Rule 1.6."
Note that a lawyer representing a bar applicant or a respondent in a disciplinary matter, is governed, not by Rule 8.1, but by "the rules applicable to the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3." Ohio Rule 8.1 cmt. .