The opinion
[Cite as In re Application of Brown, 125 Ohio St.3d 354, 2010-Ohio-1863.]
IN RE APPLICATION OF BROWN.
[Cite as In re Application of Brown, 125 Ohio St.3d 354, 2010-Ohio-1863.]
Attorneys — Character and fitness — Application to register as a candidate for
admission to the bar — Failure to disclose copyright-infringement suit —
Application disapproved, with permission to reapply.
(No. 2009-2118 — Submitted February 17, 2010 — Decided May 5, 2010.)
ON REPORT by the Board of Commissioners on Character and
Fitness of the Supreme Court, No. 396.
__________________
Per Curiam.
{¶ 1} Kevin David Brown of Cuyahoga Falls, Ohio, has applied to
register as a candidate for admission to the Ohio bar, although he has not yet filed
an application to take the bar examination. Citing the applicant’s failure to
disclose a copyright-infringement suit that was filed and served upon him as he
prepared to submit his application to register as a candidate for admission, the
Board of Commissioners on Character and Fitness recommends that we
disapprove his character, fitness, and moral qualifications at present. The board
further recommends that we permit the applicant to apply for the July 2010 bar
exam. We accept the board’s recommendation to disapprove the pending
application, but will allow the applicant to apply for the February 2011 bar exam,
provided that he first submits a new and complete application to register as a
candidate for admission to the practice of law.
Summary of Proceedings
{¶ 2} The applicant completed his application to register as a candidate
for admission to the Ohio bar on October 23, 2007, and the Bar Admissions
Office received it on November 15, 2007. On his application, applicant answered
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“No” to question 20(A) – “Have you ever had a complaint filed against you in any
civil, criminal, or administrative forum, alleging fraud, deceit, misrepresentation,
forgery, or legal malpractice?” Although he answered “Yes” to question 20(E) —
“Have you ever been summoned for a violation of any other statute, regulation, or
ordinance?” — the only civil lawsuit he disclosed was a 2005 municipal court
action for default on a lease agreement.
{¶ 3} The applicant amended his application on November 12, 2007, to
correct his date of birth and provide “inadvertent[ly]” omitted information
regarding his current employer, past employers, and additional information
regarding several of his references. On December 28, 2007, applicant appeared
before a notary and verified that he had read his application and had “answered all
the questions fully and frankly,” and that the answers were “complete and true” to
the best of his knowledge. He again amended his application on March 5, 2008,
to provide additional employment information in response to a request from the
National Conference of Bar Examiners.
{¶ 4} Pursuant to Gov.Bar R. I(11)(C)(3) and (D)(1), two members of
the Akron Bar Association’s admissions committee interviewed the applicant on
June 19, 2008, to ascertain whether he possessed the requisite character, fitness,
and moral qualifications for admission to the practice of law. When the
interviewers asked him whether any answer on his character questionnaire should
be changed or supplemented, the applicant indicated that there was one change.
Then, for the first time, the applicant revealed that in October 2007, Walt Disney
Company had filed a copyright-infringement suit against him regarding certain
eBay transactions and that he had settled the claim in April 2008. Based upon the
recent copyright suit, the bar association’s admissions committee issued a
preliminary report approving the applicant’s character and fitness with
qualifications.
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January Term, 2010
{¶ 5} The applicant appealed the qualified approval pursuant to Gov.Bar
R. I(12), and a three-member panel of the Board of Commissioners on Character
and Fitness conducted a hearing to inquire into his character, fitness, and moral
qualifications. See Gov.Bar R. I(12)(C).
Copyright Infringement and Nondisclosure
{¶ 6} At the June 9, 2009 hearing, the applicant testified that Disney had
filed a copyright-infringement action against him in the Western District of
California in 2007. The suit arose from the applicant’s conduct during the
summer of 2007 – between his first and second years of law school – when he and
a friend bought approximately 300 to 500 unauthorized Disney DVDs from China
and sold them on eBay for a profit.
{¶ 7} The applicant testified that he never questioned the legality of
importing 300 to 500 DVDs from China for $6 to $10, despite that country’s
reputation for manufacturing bootleg materials. When the chairman of the
committee said, “You know, my daddy always told me, you buy a diamond ring
for 10 cents, you got exactly that, a 10 cent ring,” the applicant responded, “Right.
I can’t explain why that thought never crossed my mind. Obviously, if I had to do
it again, I [would] have said that exact same thing.”
{¶ 8} The applicant admitted that he had been served with the copyright-
infringement suit before he submitted his application. He claimed that with the
exception of a few questions for which he needed to gather additional
information, he had completed his application when it first became available
online, and he did not go back to see whether he needed to disclose the lawsuit
after having been served with the complaint. However, he also acknowledged
that he did not initially disclose the lawsuit: “[I] kind of wanted to see what
transpired,” and “[I] figured to wait to see after I settled it so I knew there was a
resolution, and then my interview was shortly thereafter and I wanted to bring it
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up there.” He also admitted that he did not disclose the existence of the lawsuit
on two occasions when he supplemented his application.
{¶ 9} The applicant did not present testimony from any character
witnesses at the hearing, but submitted letters from co-workers and friends
vouching for his good character and fitness to practice law. Bryan L. Penvose, an
attorney at the applicant’s employer, Koblentz & Koblentz, submitted one such
character reference on the firm’s letterhead. However, the applicant
acknowledged that he had intentionally avoided disclosing his character and
fitness woes to the named partner at the firm, Richard S. Koblentz.
Disposition
{¶ 10} 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).
Necessarily, “[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.
{¶ 11} In determining that the applicant had not proven that he possessed
the requisite character, fitness, and moral qualifications, the board considered the
factors set forth in Gov.Bar R. I(11)(D)(3)(a) through (o). The board found that
respondent’s conduct violated Gov.Bar R. I(11)(D)(3)(f) “by showing a pattern of
disregard for the laws of the United States in selling pirated intellectual property;
(g) by failing to provide complete and accurate information concerning his past;
(h) by making an omission in his application and to his employer; and (i) by
committing acts involving dishonesty, deceit, and misrepresentation both in the
underlying conduct that led to the lawsuit, but more importantly during the
admissions process.”
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January Term, 2010
{¶ 12} In establishing the weight and significance of the applicant’s
conduct, the board noted that both the underlying conduct and respondent’s
failure to report it were serious and were not youthful indiscretions because they
occurred while he was a law student. Gov.Bar R. I(11)(D)(4)(a), (b), and (d).
And although the applicant’s payment of restitution was some evidence of
rehabilitation, the payment was made only in response to the filing of a lawsuit.
Gov.Bar R. I(11)(D)(4)(g). Further, the board considered applicant’s lack of
candor both during the admissions process and with his employer. Gov.Bar R.
I(11)(D)(4)(i).
{¶ 13} We also note that Gov.Bar R. I(2)(F) imposes a continuing duty
upon applicants to promptly report all changes or additions to information in their
application to the Admissions Office. However, the applicant made no such
report, choosing instead to rely upon his verbal disclosures to the bar association’s
admissions committee at his character and fitness interview and to the board panel
at his hearing.
{¶ 14} The applicant has admitted that he had been served with a
complaint for copyright infringement before he submitted his application to
register as a candidate for admission to the Ohio bar and that he failed to disclose
the existence of that action in accordance with the duty imposed by Gov.Bar R.
I(2)(F). He also admits that he settled that suit, paying a substantial sum in
restitution. Given the seriousness and recency of the conduct leading to the
copyright-infringement action, which occurred while the applicant was a law
student, and the applicant’s deliberate decision to delay disclosure of the lawsuit
to the Office of Bar Admissions, we agree with the board’s determination that the
applicant has yet to sustain his burden of proof that he possesses the requisite
character, fitness, and moral qualifications for the practice of law.
{¶ 15} Based upon the foregoing, we accept the board’s recommendation
to disapprove the applicant’s pending application. Provided that he submits a new
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application to register as a candidate for admission to the practice of law and is
able to establish his character, fitness, and other qualifications, the applicant may
apply to take the February 2011 bar exam.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
BROWN, C.J., not participating.
__________________
Kevin David Brown, pro se.
Tammy S. Richardson, for the Akron Bar Association.
______________________
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