In re Application of Burch

[Cite as In re Application of Burch, 133 Ohio St.3d 82, 2012-Ohio-3935.]

IN RE APPLICATION OF BURCH.

[Cite as In re Application of Burch, 133 Ohio St.3d 82, 2012-Ohio-3935.]

Attorneys—Character and fitness—History of lack of candor and errors in

judgment during law-school career weigh against approval of application

for admission to the bar—Applicant may reapply to take a later bar

examination upon demonstration of her character and fitness.

(No. 2012-0430—Submitted June 5, 2012—Decided September 6, 2012.)

ON REPORT by the Board of Commissioners on Character and

Fitness of the Supreme Court, No. 501.

__________________

Per Curiam.

{¶ 1} Robin Leigh Burch of Cincinnati, Ohio, is a 2010 graduate of the

University of Cincinnati College of Law and has applied as a candidate for

admission to the bar. This matter is before the court on Burch’s application to

take the July 2011 bar exam. The Board of Commissioners on Character and

Fitness expresses serious concerns about Burch’s conduct during law school,

including her lack of diligence and failure to abide by law-school rules, her

unprofessional conduct, and her failure to accept responsibility for those actions.

Believing that Burch needs additional time to mature, the board recommends that

Burch’s application be disapproved and that she be permitted to apply for the

February 2013 bar exam.

{¶ 2} Burch objects to the board’s recommendation, arguing that she has

proven by clear and convincing evidence that she presently possesses the requisite

character and fitness to practice law. Therefore, she urges this court to reject the

board’s recommendation, approve her application, and permit her to take the July

SUPREME COURT OF OHIO

2012 bar exam. For the reasons that follow, we overrule Burch’s objection and

adopt the board’s recommendation.

Summary of Proceedings

{¶ 3} Burch has applied as a candidate for admission to the Ohio bar and

first applied to take the July 2010 bar exam. The Office of Bar Admissions did

not receive final approval of her character and fitness in sufficient time for her to

sit for that exam and, consequently, did not permit her to take that exam. She

later applied to take the July 2011 bar exam.

{¶ 4} As part of the admissions process, Burch was interviewed by

different teams of Cincinnati Bar Association Admissions Committee members in

June and November 2010. The questions at those interviews focused on a report

submitted to the National Conference of Bar Examiners (“NCBE”) by the

University of Cincinnati College of Law, detailing a number of instances of

conduct that officials believed to reflect upon Burch’s fitness to practice law,

including

(1) failing to comply with requirements in courses taken in

the spring of 2008 and fall of 2009, which resulted in her

unauthorized withdrawal from the courses and failing grades, and

failing to submit an assigned paper and acceptable work in another

class, which resulted in her not passing a portion of that class,

(2) making comments in an open courtroom during a

judicial externship that were critical of the court process and its

participants and were heard by others in the courtroom,

(3) failing to disclose to a dean that she had not completed

course work from the previous semester as she sought permission

to exceed the credit-hour limit for the last semester of law school,

and

2

January Term, 2012

(4) signing of an attorney-instructor’s name to a court

document without authorization.

{¶ 5} Expressing concern not only with Burch’s conduct, but also with her

attitude that the rules did not apply to her, her failure to accept responsibility for

her actions, her compulsive need to excuse her behavior, and her difficulty being

forthright when asked direct questions, both sets of interviewers recommended

that Burch’s application be disapproved on her character and fitness.

{¶ 6} Pursuant to the procedures of the local admissions committee, Burch

appeared before an eight-member review panel to answer additional questions

about her conduct in law school, as well as her diagnoses of depression and

attention deficit disorder and how those conditions contributed to her conduct or

would affect her fitness to practice law. Based upon the testimony of Burch and

Nancy Ent, program manager for the Urban Morgan Institute for Human Rights,

who had supervised Burch’s work as an editor for Human Rights Quarterly, the

review panel recommended that Burch be approved. And in May 2011, the

admissions committee certified that Burch possessed the requisite character,

fitness, and moral qualifications required for the admission to the practice of law

in Ohio. The board, however, exercised its authority pursuant to Gov.Bar R.

I(10)(B)(2)(e) to further investigate Burch’s character and fitness in light of her

mental-health issues and the concerns expressed in the law-school report to the

NCBE.

{¶ 7} The panel assigned to hear the case identified the following critical

issues: (1) whether Burch has become more willing to recognize that rules apply

to her even if she does not agree with them, (2) whether Burch is willing to meet

all of her obligations, not just the ones she wants to meet, and (3) whether she is

willing to accept responsibility for her actions instead of attempting to justify her

behavior.

3

SUPREME COURT OF OHIO

{¶ 8} Megan Snyder, a licensed independent social worker and a clinical

associate with the Ohio Lawyers Assistance Program (“OLAP”), testified that

Burch had been referred to OLAP by the Cincinnati Bar Association. Because

Burch had longstanding diagnoses of depression and attention deficit disorder,

Snyder did not conduct an independent assessment. Based upon their discussion,

however, Burch entered into a two-year mental-health-recovery contract and has

substantially complied with its requirements. Snyder testified that OLAP has no

objection to Burch’s being permitted to sit for the bar exam.

{¶ 9} Dr. Paul Droessler, Burch’s treating psychiatrist, testified that he

began to manage Burch’s medications in 2007 following her move to Cincinnati

and that shortly thereafter, Burch agreed to participate in psychotherapy with him

on an ongoing basis. Dr. Droessler stated that with continuing psychotherapy and

medication, Burch’s prognosis is fair. He noted that she has a tendency to be

unfocused and to engage in rambling discourse rather than directly answering a

question, but expressed his opinion that her failure to meet deadlines and other

responsibilities was more a choice than a result of her mental-health conditions,

stating that she was “more unwilling than unable.”

{¶ 10} Nancy Ent, of the Urban Morgan Institute, also testified on Burch’s

behalf. Ent’s job duties include overseeing several internship programs as well as

the Human Rights Quarterly, the Institute’s journal on human rights. Burch

worked on the journal approximately 20 hours per week during her second and

third years of law school, primarily performing blue-book citation checking and

proofreading. Ent testified that Burch was a first-rate cite checker and that she

performed her duties responsibly. She acknowledged that Burch, like other

students, had issues meeting deadlines at first but stated that she resolved Burch’s

issues by breaking tasks down into components and giving her more specific

deadlines for each of the tasks. The panel believed that Ent was an honest witness

but noted that she was a “strong supporter of the applicant.” And because her

4

January Term, 2012

experience with Burch was largely positive, the panel members expressed concern

that she did not take the law school’s report seriously. Therefore, the panel did

not ascribe great weight to Ent’s opinion that Burch had matured after graduating

from law school or her prediction that Burch would take responsibility, meet

deadlines, and conduct herself professionally if she were admitted to the practice

of law.

{¶ 11} Though Burch had minor disagreements with the facts set forth in

the law school’s report, she stipulated that most of the alleged conduct did occur.

The panel found that Burch’s testimony gave credence to the concerns of the law

school and the admissions committee.

{¶ 12} The panel summarized Burch’s testimony:

[S]he vacillated from acknowledging that she had these issues to

attempting to justify her right to, for example, not attend class or

complete certain assignments because she was paying for law

school and if she wanted to spend her time in what she considered

more productive activities, she was entitled to do that. She also

indicated that she was not aware that there would be such serious

consequences for her actions, with the implication being that the

consequences were unfair because she had no warning of them.

Disturbingly, the applicant did not seem to exhibit any insight into

her behavior or to express any recognition that her actions may not

have been proper. Although she indicated that she would not

conduct herself in this manner when a client’s interests were at

stake, this was not because she seemed to recognize that her

behavior under the circumstances was problematic, but rather that

the circumstances of representing a client would necessarily cause

her to act responsibly.

5

SUPREME COURT OF OHIO

{¶ 13} To emphasize Burch’s lack of understanding and failure to accept

responsibility, the panel cited the following passage from her testimony:

So, I feel like, you know, there have been issues, but, I

mean, I’ve done it. You know, I have a Bachelor of Science in

math, a JD. I mean I’ve been all over the world. I built a

darkroom in my basement during my first year of law school.

***

I mean, now is the time to be modest, but I am one of the

most talented people you will ever meet. In fact, I have gotten to

this point in my life and spent the last, you know, I mean, what,

well over a year and a half kind of stymied, for lack of a better

term, because of two pieces of paper, you know.

And, yeah, I take responsibility. I screwed up. I did some

things that were stupid, not in my best interest. Of course, did I

realize the consequences that were ultimately going to come? No.

Did I realize some of the immediate consequences at the time?

Yeah, some of them.

I agree with Nancy [Ent], some of them ended up being

harsher than they should have been. You know, I’m not the only

student to ever miss classes, but I am the only one who got called

out for it so much.

So, you know, I got on the wrong side of the wrong people.

That’s unfortunate, and it doesn’t negate what I did. But, you

know, it’s just, you know, I messed up, but when it comes to—and

I’ll be the first to admit, I hated law school, you know.

6

January Term, 2012

{¶ 14} As the board observed:

The difficulty with such vacillation by the applicant is that

it fails to recognize that she did not just miss some classes; she

repeatedly missed deadlines on significant course assignments and

then because she probably would have failed the course, she

withdrew from it. She conducted herself in an unprofessional

manner during her judicial externship by making untoward

comments about court personnel and procedure. And, she without

permission signed an attorney’s name to a document to be filed

with the Court. Moreover, throughout the entire process from her

initial interviews through to this panel’s hearing, she continued on

one hand to say both “I’m responsible” but followed always by “I

was treated too harshly” and “I got on the wrong side of the wrong

people.” At best, the applicant’s attitude makes for an unattractive

presentation; at worst it calls into question fitness to undertake

professional responsibilities.

{¶ 15} Based upon these findings, the panel found that Burch had not

proven by clear and convincing evidence that she presently possesses the requisite

character and fitness to be admitted to the Ohio bar. Expressing hope that with

more time to mature, Burch will one day be able to satisfy this burden, the panel

recommended that Burch not be approved for admission, but that she be permitted

to apply for the July 2012 bar exam.

{¶ 16} The board adopted the panel’s findings of fact and recommendation

that Burch’s current application be disapproved but recommended that Burch be

permitted to apply for the February 2013 bar examination.

7

SUPREME COURT OF OHIO

Objection to the Board Recommendation and Disposition

{¶ 17} An applicant to the Ohio bar must 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). The

applicant’s record must justify “the trust of clients, adversaries, courts, and others

with respect to the professional duties owed to them.” Gov.Bar R. I(11)(D)(3).

“A record manifesting a significant deficiency in the honesty, trustworthiness,

diligence, or reliability of an applicant may constitute a basis for disapproval of

the applicant.” Id.

{¶ 18} Gov.Bar R. I(11)(D)(3) and (4) provide nonexhaustive lists of

factors that the admissions committee and the board must consider before making

a recommendation concerning an applicant’s character, fitness, and moral

qualifications. Among the factors to be considered are whether the applicant has

engaged in false statements, including omissions, or neglect of professional

obligations. Gov.Bar R. I(11)(D)(3)(h) and (l).

{¶ 19} Burch objects to the board’s recommendation and contends that if

the evidence is properly weighed, she has proven by clear and convincing

evidence that she presently possesses the requisite character, fitness, and moral

qualifications to practice law. She argues that the panel and board placed undue

weight on the mistakes she made in law school but did not adequately credit her

testimony in which she claims to have (1) accepted responsibility for her past

conduct, (2) fulfilled her professional obligations in her nonlegal employment

following her graduation from law school, (3) substantially complied with her

OLAP contract, and (4) demonstrated that she understands the significance of an

attorney’s duty to her clients.

{¶ 20} Gov.Bar R. I(11)(D)(4) sets forth a number of factors to be

considered in assigning weight and significance to an applicant’s prior conduct:

(a) age of the applicant at the time of the conduct, (b) recency of the conduct, (c)

8

January Term, 2012

reliability of the information concerning the conduct, (d) seriousness of the

conduct, (e) factors underlying the conduct, (f) cumulative effect of the conduct,

(g) evidence of rehabilitation, (h) positive social contributions of the applicant

since the conduct, (i) candor of the applicant in the admissions process, and (j)

materiality of any omissions or misrepresentations.

{¶ 21} Despite Burch’s protestations, a number of these factors weigh in

favor of the panel’s and board’s findings. Her misconduct did not involve

youthful indiscretions. It occurred while she was in law school and contemplating

her future admission to the bar. See Gov.Bar R. I(11)(D)(4)(a) and (b). The

information submitted by the law school was reliable. See Gov.Bar R.

I(11)(D)(4)(c). Indeed, Burch stipulated that the events had occurred, though she

also sought to justify her conduct.

{¶ 22} On the surface, Burch’s failure to comply with course attendance

requirements and assignment deadlines and her unauthorized withdrawal from

classes when faced with the prospect of a failing grade appear to harm no one but

Burch. Burch claimed that she missed the deadline for one of her writing

assignments because she “was not very comfortable with the side [she] was on.”

She explained, “I really wanted to be on the other side, in reality, probably the

losing side, but it was the side I felt much stronger arguing from, personally.” But

in practice, a lawyer has a duty to diligently represent her clients regardless of

their position in the case. Some of those clients will have what the attorney

believes to be the weaker legal argument or will have positions that clash with the

attorney’s personal or political views. But an attorney cannot miss court

deadlines simply because a case is difficult to prepare. Burch’s inability or

unwillingness to follow the rules when compliance was to her own benefit calls

into question her ability to comply with the rules and meet deadlines for the

benefit of others—particularly her clients—should she be admitted to the bar.

9

SUPREME COURT OF OHIO

{¶ 23} Burch’s pattern of reckless conduct is also reflected in her decision

to sign her supervising attorney’s name to several attorney-designation forms.

Burch knew that as an intern, she was not authorized to sign an attorney’s name to

a document. Despite this knowledge, she testified that she signed the attorney’s

name because she wanted more responsibility and because it would save her from

making a second trip to the courthouse. The attorney reported that Burch

“generally completed her assigned tasks on time and in a satisfactory manner” and

that she worked diligently. She attributed Burch’s poor decisions to eagerness

and enthusiasm and believed that she had learned from her mistakes. The panel

and board, however, were not convinced—and neither are we.

{¶ 24} Burch’s critical comments about the court process in an open

courtroom and her failure to appreciate the impropriety of signing an attorney’s

name to a court document are serious because the Rules of Professional Conduct

prohibit a lawyer both from engaging in undignified or discourteous conduct that

is degrading to a tribunal and knowingly making a false statement of fact or law

to a tribunal. See Prof.Cond.R. 3.5(a)(6) and 3.3(a)(1).

{¶ 25} Moreover, Burch’s omission of the material fact that she had not

completed the coursework for the previous semester when she sought permission

to exceed the law school’s credit-hour limit exhibits a disturbing lack of candor

and maturity in her final semester of law school. We have stated that the practice

of law is “a learned profession grounded on integrity, respectability, and candor.”

See, e.g., Disciplinary Counsel v. Claflin, 107 Ohio St.3d 31, 2005-Ohio-5827,

836 N.E.2d 564, ¶ 14. If Burch is permitted to take the bar exam and achieves a

passing score, she will have a duty of candor to her clients, her opposing counsel,

and the courts. See, e.g., Akron Bar Assn. v. Dietz, 108 Ohio St.3d 343, 2006-

Ohio-1067, 843 N.E.2d 786, ¶ 20 (a lawyer owes duties of loyalty, integrity, and

candor to the courts and his clients), and Prof.Cond.R. 1.4 (requiring a lawyer to

reasonably consult with a client and to keep a client reasonably informed of a

10

January Term, 2012

matter), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement

of fact or law to a tribunal or failing to correct a false statement of material fact or

law previously made to the tribunal by the lawyer), 3.3(a)(2) (prohibiting a lawyer

from knowingly failing to disclose to the tribunal controlling legal authority

known to be directly adverse to the client’s position and not disclosed by

opposing counsel), 3.3(d) (requiring a lawyer in an ex parte proceeding to inform

the tribunal of all material facts known to the lawyer, including adverse facts, that

will enable the tribunal to make an informed decision), and 3.4(a) (prohibiting a

lawyer from unlawfully obstructing another party’s access to evidence or

unlawfully altering, destroying, or concealing documents or other material having

potential evidentiary value). Burch’s lack of candor and, perhaps more

importantly, her continuing failure to recognize that her incomplete coursework

from a prior semester might be relevant to the dean’s decision on her request to

exceed the credit-hour limit demonstrate that she does not currently possess the

level of candor that is essential to the practice of law.

{¶ 26} Although Burch has been candid with the admissions committee

and the board, see Gov.Bar R. I(11)(D)(4)(i), has substantially complied with her

OLAP contract, see Gov.Bar R. I(11)(D)(4)(g), and has excelled in her recent

employment as an in-home tutor, see Gov.Bar R. I(11)(D)(4)(h), we agree with

the board’s assessment that these rehabilitation efforts and positive social

contributions do not overcome the cumulative effect of Burch’s errors in

judgment during her law-school career. See Gov.Bar R. I(11)(D)(4)(f).

{¶ 27} Burch may have expressed some insight into her behavior and

recognized that some of her actions—signing an attorney’s name to a court

document and making inappropriate comments in an open courtroom—may not

have been proper. But she does not appreciate how her failure to attend class, the

missed deadlines and withdrawal from several classes, and her failure to be

11

SUPREME COURT OF OHIO

candid with the dean of her law school negatively reflect on her fitness to practice

law.

{¶ 28} Burch’s repeated attempts to excuse her conduct and deflect blame

from herself with claims that she was treated too harshly, got on the wrong side of

the wrong people, and was caught off guard by the law school’s reporting of her

conduct to the NCBE demonstrate that she does not yet possess the maturity to

accept responsibility for her past conduct, to learn from her mistakes, or to make

better choices in the future.

{¶ 29} Based upon the foregoing, we find that Burch has failed to prove

that she currently possesses the requisite character, fitness, and moral

qualifications for admission to the practice of law in Ohio. We therefore overrule

Burch’s objections, adopt the board’s findings of fact, and disapprove Burch’s

application to take the July 2011 bar exam. She may apply to take the February

2013 bar exam by timely submitting a new application to take the bar examination

in accordance with Gov.Bar R. I(3) and submitting an updated report from OLAP.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Statman, Harris & Eyrich, L.L.C., and Michael R. Keefe, for applicant.

Buechner, Haffer, Meyers & Koenig Co., L.P.A., and Robert G. Hyland,

for the Cincinnati Bar Association.

______________________

12