In re Application of Poignon

[Cite as In re Application of Poignon, 132 Ohio St.3d 395, 2012-Ohio-2915.]

IN RE APPLICATION OF POIGNON.

[Cite as In re Application of Poignon, 132 Ohio St.3d 395, 2012-Ohio-2915.]

Attorneys—Character and fitness—Violations of laws of the state, loss of license

to practice pharmacy, failure to accept responsibility for behavior,

inability or unwillingness to maintain gainful employment, neglect of

financial responsibilities—Applicant is permanently precluded from

reapplying for admission to practice law in this state.

(No. 2011-1423—Submitted December 6, 2011—Decided July 5, 2012.)

ON REPORT by the Board of Commissioners on Character and Fitness of the

Supreme Court, No. 492.

__________________

Per Curiam.

{¶ 1} Daniel Paul Poignon of Monclova, Ohio, applied as a candidate for

admission to the Ohio bar and applied to take the July 2011 bar exam. Expressing

serious concerns about Poignon’s failure to take responsibility for his crimes that

resulted in felony convictions on two counts of theft of drugs and the revocation

of his license to practice pharmacy, his lack of attention to his family’s current

financial affairs, and his failure to seek or obtain gainful employment for over

three years, the Board of Commissioners on Character and Fitness recommends

that Poignon’s application be disapproved and that he not be permitted to reapply

for admission to the Ohio bar. Poignon objects to the board’s recommendation,

arguing that this court should permit him to address the board’s concerns and to

reapply for admission to the Ohio bar. We overrule Poignon’s objections and

adopt the board’s recommendation.

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Summary of Proceedings

{¶ 2} In November 2010, the Toledo Bar Association admissions

committee recommended that Poignon’s application be disapproved based upon

his felony conviction for theft of controlled substances and the resulting

revocation of his Ohio State Board of Pharmacy license, neglect of his personal

financial responsibilities, and his failure to accept responsibility for his mistakes.

{¶ 3} Poignon timely appealed from the admissions committee’s

recommendation, and the board appointed a panel to review his character, fitness,

and moral qualifications. The panel conducted a hearing on May 26, 2011, at

which it heard testimony from Poignon and three other witnesses who appeared in

his behalf.

{¶ 4} Poignon testified that he graduated from pharmacy school and

obtained his Ohio pharmacist’s license in 1984. He worked at St. Vincent

Hospital in Toledo for several years. In 1990 he accepted a job at McLeod

Regional Hospital in South Carolina, but during his employment, other members

of the pharmacy staff accused him of drug use. He stated that he had been cleared

of drug use, but had been asked to resign based on allegations that he had self-

prescribed a medication. Poignon claimed that an intern had written the

prescription for him but that the intern later denied having done so.

{¶ 5} Following Poignon’s departure from McLeod, he worked at the

Florence Community College in South Carolina before returning to Ohio in 1995.

In Ohio, he worked at Galion Community Hospital for a short time before

accepting a position at Tiffin Mercy Hospital—where he was terminated for

abusing drugs.

{¶ 6} Poignon’s pharmacy career ended with his employment at Drug

Corner Pharmacy in Toledo. In connection with the sale of the pharmacy to Rite

Aid, the Ohio State Board of Pharmacy conducted an investigation that revealed

discrepancies in the pharmacy’s narcotics supply. Poignon was indicted and

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pleaded no contest to two counts of theft of drugs,1 both fourth-degree felonies,

and in October 1999, he was sentenced to six months in a correctional treatment

facility followed by five years of community control. Poignon successfully

completed the treatment program, and his community control was terminated in

2001—approximately four years early. Thereafter, he had his criminal record

expunged. But as a result of his convictions, the Ohio Board of Pharmacy

revoked his license to practice pharmacy.

{¶ 7} Although Poignon claims to accept responsibility for his crimes

and for losing his license to practice pharmacy, he has also offered many

explanations and excuses for his conduct, leading the board to doubt his sincerity.

Poignon claimed during his admissions-committee interview and his testimony

before the panel that he had entered his no-contest plea because he faced a

contempt charge for mistakenly missing a trial date and because his lawyer had

mishandled his case. He blamed his supervisor, who he reports was convicted of

similar misconduct involving controlled substances, for the missing drugs. And

he claimed that virtually every pharmacist who worked at Drug Corner Pharmacy

was stealing and using drugs and that such acts are common practice within the

profession.

{¶ 8} Although Poignon conceded that the pharmacy board had acted

within its discretion when it revoked his license, he placed some of the blame for

his license revocation on his attorney, who had withdrawn approximately five

days before his hearing. He admitted, however, that he had not requested a

continuance of the hearing or even notified the board that his attorney had

recently withdrawn.

{¶ 9} Poignon’s employment history as a pharmacist shows that his use

and abuse of prescription drugs spanned at least seven years. The evidence

1. Although the board report repeatedly states that Poignon pleaded guilty to these charges, the

record reflects that he entered a no-contest plea.

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demonstrates, however, that he successfully completed a course of drug treatment

as part of his criminal sentence, and it does not appear that he has had any further

incidents of substance abuse.

{¶ 10} In addition to its concerns about Poignon’s history of drug use and

his felony theft convictions, the board also expressed concern about his neglect of

his family’s financial affairs. Despite his family’s financial problems, at the time

of his hearing in May 2011, Poignon had not been employed since April 2008,

though he had occasionally done odd jobs for neighbors. Following his release

from drug treatment in 2000, he held several short-term jobs from which he had

voluntarily resigned. He had also worked for a solo practitioner while in law

school and reported on his bar application that he had left for lack of work. That

employer, however, reported to the National Conference of Bar Examiners that he

was terminated for lack of experience. Poignon testified that he had never been

told that his performance was unsatisfactory, and he attributed the employer’s

response to a personality conflict with the employer’s mother, who served as the

office manager. Thomas Matuszak, formerly of Roetzel & Andress, testified that

Poignon had worked as a paralegal for that firm during law school. He stated that

he had never had any reason to doubt Poignon’s honesty and that he believed that

Poignon had grown from his mistakes and was now able to exercise good

judgment.

{¶ 11} The panel found Poignon’s seeming ignorance of and indifference

to his family’s financial affairs even more disturbing than his dismal employment

history. His credit rating was poor—due in part to delinquent accounts and a poor

history of paying bills on time. While Poignon identified his wife as the primary

wage earner, he also admitted that she had filed for bankruptcy in 2010. He

testified that he has no knowledge of the bankruptcy proceeding because it is his

wife’s filing and she is handling it. He believed, however, that the primary reason

for the filing was to prevent foreclosure on their home.

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{¶ 12} With respect to the foreclosure, the summons and complaint served

on Poignon plainly identified him as a party defendant, advised him that he had

28 days after service of the summons to file an answer, and stated that if he failed

to file an answer, a default judgment would be rendered against him. Yet

Poignon, a law-school graduate when he was served with the complaint,

incredibly testified before the panel that he did not believe himself to be a party to

the action. He did not answer the complaint, and, consequently, a default

judgment was rendered against him, though it was later vacated due to his wife’s

bankruptcy filing.

Recommendation

{¶ 13} Expressing serious concerns about Poignon’s self-serving

explanations for his criminal conviction and the revocation of his license to

practice pharmacy, his lack of attention to his family’s current financial affairs,

and his failure to seek or obtain gainful employment for over three years, the

panel recommended that Poignon’s application be disapproved but that he be

permitted to reapply for the July 2013 bar examination.

{¶ 14} The board adopted the panel’s findings of fact and agreed that

Poignon does not presently possess the requisite character, fitness, or moral

qualifications to practice law. However, it did not adopt the panel’s

recommendation that he be permitted to reapply. After a lengthy and intense

discussion, the board concluded that Poignon’s dishonest and unethical behavior

during much of his 15 years as a pharmacist, the revocation of his pharmacy

license, his failure—more than ten years later—to fully accept responsibility for

his criminal and unprofessional conduct, his lengthy failure to seek gainful

employment, and his disturbing lack of responsibility for his financial affairs

demonstrate such an absence of honesty and integrity that Poignon should not be

permitted to reapply for admission to the Ohio bar. In making this

recommendation, the board stated its belief that the public would lose confidence

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in the integrity of the legal profession if persons who have been permanently

removed from other professions for disciplinary reasons were permitted

admission to the bar.

Disposition

{¶ 15} 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. 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 (1) a pattern of disregarding the law, (2) acts involving dishonesty,

fraud, deceit, or misrepresentation, (3) neglect of financial responsibilities, and (4)

conduct resulting in disciplinary action by a disciplinary agency for another

profession. Gov.Bar R. I(11)(D)(3)(f), (i), (k), and (o).

{¶ 16} A prior felony conviction does not demonstrate, per se, that an

applicant lacks the moral character necessary to practice law. In re Application of

Keita, 74 Ohio St.3d 46, 48, 656 N.E.2d 620 (1995), citing In re Application of

Davis, 38 Ohio St.2d 273, 275, 313 N.E.2d 363 (1974). But when an applicant’s

background includes such a conviction, the applicant bears the burden of proving

that he or she is morally fit to practice law and that he or she is fully and

completely rehabilitated. Id.

{¶ 17} Poignon concedes that he has failed to prove that he currently

possesses the character, fitness, and moral qualifications necessary to practice law

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in Ohio. But he objects to the board’s recommendation that he be forever barred

from seeking admission to the bar and requests another opportunity to

demonstrate his rehabilitation to this court. He cites three cases that he claims are

similar to his in which this court permitted applicants to reapply for the bar exam.

Two cases involved the existence of prior criminal convictions and substance

abuse, and one case involved the revocation of the applicant’s teaching license.

{¶ 18} In the first case, In re Application of Creighton, 117 Ohio St.3d

253, 2008-Ohio-852, 883 N.E.2d 433, ¶ 5, 11, the applicant, a former teacher,

failed to disclose in his application for law school that in his first teaching

position, he had been disciplined for fraternizing with his high school students.

The Ohio Department of Education later revoked the applicant’s teaching permit

based upon his inappropriate personal contacts and relationships with students.

Id. at ¶ 9. Although he initially denied the allegations against him, the applicant

eventually admitted that the allegations were true, accepted full responsibility for

his actions, and showed genuine remorse. Id. at ¶ 24, 28-33. While recognizing

that the applicant might never be able to prove his character and fitness, we

recognized that he had been a young and inexperienced teacher at the time of his

misconduct, and we gave him the opportunity to reapply for a future bar

examination after a longer period of rehabilitation, and on the condition that he

submit a positive psychological assessment. Id. at ¶ 37.

{¶ 19} In the second case, In re Application of Corrigan, 123 Ohio St.3d

173, 2009-Ohio-4183, 915 N.E.2d 300, ¶ 6-9, the applicant had a lengthy period

of unstable employment, left one job following allegations that he had falsified a

time card, and in addition to multiple arrests for minor incidents involving alcohol

abuse, had pleaded guilty to DUI, felonious assault, and two counts of assault on a

peace officer. Citing evidence of a mental or psychological disorder and an

existing and untreated alcohol dependence, as well as the applicant’s ambivalence

toward rehabilitation, we disapproved his pending application, but left open the

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possibility that he could reapply after submitting a psychiatric evaluation and an

alcohol counselor’s assessment to the Board of Commissioners on Character and

Fitness. Id. at ¶ 12, 16-17.

{¶ 20} And in In re Application of Alban, 116 Ohio St.3d 190, 2007-Ohio-

6043, 877 N.E.2d 658, ¶ 4-8, 13, we likewise disapproved the applicant’s pending

bar-exam application based upon a series of drug- and alcohol-related offenses,

two of which occurred while the applicant was in law school. Noting the relative

recentness of the applicant’s abstinence and our past practice of temporarily

disapproving applications to take the bar examination by such applicants in order

to give them more time to prove that they have overcome their substance-abuse

problems, we permitted the applicant to reapply the following year. Id. at ¶ 13,

citing In re Application of Olterman, 106 Ohio St.3d 383, 2005-Ohio-5324, 835

N.E.2d 370, and In re Application of Ralls, 109 Ohio St.3d 487, 2006-Ohio-2996,

849 N.E.2d 36.

{¶ 21} The facts of Poignon’s case, however, are distinguishable from

those of Creighton, Corrigan, and Alban. Unlike Alban’s conduct, Poignon’s

conduct was not the result of inexperience or youthful indiscretion. See Gov.Bar

R. I(11)(D)(4)(a). And unlike Creighton and Corrigan, Poignon has presented no

evidence that his most recent problems—his failure to accept responsibility for his

crimes, the loss of his license to practice pharmacy, and his failure to be

financially responsible—are the result of a psychological disorder or a substance-

abuse problem. See Gov.Bar R. I(11)(D)(3)(e).

{¶ 22} More than ten years after his convictions for theft of drugs,

Poignon continues to blame his co-workers, an alleged culture of drug use and

abuse in the pharmacy profession, and poor legal representation in his criminal

and licensure matters, rather than his own failings, for his criminal convictions

and the loss of his license to practice pharmacy. Despite having ample time and

opportunity to demonstrate his full rehabilitation, Poignon has held a series of

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jobs for short periods of time, was unemployed for the three years preceding his

panel hearing, and has made no appreciable efforts to obtain sustained, gainful

employment. He filed for bankruptcy in 1997, has not kept up with his financial

obligations since that time, and maintains that he has no knowledge of his wife’s

finances, except for the fact that she filed for bankruptcy in 2010. Moreover,

when served with a complaint seeking to foreclose on his family home, Poignon

did nothing and, inexplicably, denied to the panel that he was even a party to the

action.

{¶ 23} Poignon’s flouting of the standards of the pharmacy profession, his

violations of the laws of this state, his ongoing failure to accept responsibility for

his behavior and its consequences, his inability or unwillingness to maintain

stable, gainful employment, his neglect of his own financial responsibilities, and

his apparent ignorance of his own family’s serious financial and legal matters

constitute a persistent and ongoing pattern of bad behavior spanning at least 20

years. In light of this pattern, we agree with the board’s conclusion that “the

ideals of trustworthiness and honesty that are so crucial to the legal profession

simply would not be served by allowing [Poignon’s] admission.”

{¶ 24} Accordingly, we adopt the board’s findings and recommendation

that Poignon’s pending application be denied and that he be forever precluded

from reapplying for the privilege of practicing law in this state.

Judgment accordingly.

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

MCGEE BROWN, JJ., concur.

O’DONNELL and CUPP, JJ., not participating.

__________________

Robison, Curphey & O’Connell, L.L.C., James E. Brazeau, and Sarah J.

Corney, for applicant.

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Vorys, Sater, Seymour & Pease, L.L.P., and Michael Thomas, for the

Board of Commissioners on Character and Fitness.

______________________

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