Tuesday, November 5, 2019

Unseal Of Disapproval

The Ohio Supreme Court has declined to admit an applicant as told by Dan Trevas

An aspiring lawyer from Findlay will be allowed to see the results of the bar exam she took 28 years ago, but has lost her latest request for admission to the practice of law, the Ohio Supreme Court ruled today.

A divided Supreme Court found Gillian K. Holzhauser-Graber failed to prove she possesses the “character, fitness, and moral qualifications” to be admitted to the Ohio bar. The Court’s per curiam opinion stated that Holzhauser-Graber has engaged in “multiple instances of dishonest conduct during legal proceedings, including in at least four previous attempts to seek admission to the Ohio bar.”

Holzhauser-Graber graduated from law school in 1988 and was initially permitted to take the 1989 bar exam, which she failed. She took the exam again in 1991, but after questions about her past actions in legal proceedings were raised, the Court sealed her exam results. Today the Court unsealed the results of Holzhauser-

Justices Judith L. French and Michael P. Donnelly joined the per curiam opinion.

Chief Justice Maureen O’Connor and Justice Melody J. Stewart concurred in part and dissented in part without a written opinion, but stated they would not unseal or release the 1991 bar exam.

Justices R. Patrick DeWine and Patrick F. Fischer concurred in part and dissented in part, without a written opinion, but stated they would not allow Holzhauser-Graber to reapply for admission to practice law.

Justice Sharon L. Kennedy concurred in part and dissented in part with a written opinion, stating the Holzhauser-Graber should not be allowed to learn the results of her bar exam until she demonstrates that she has met the character and fitness requirements to be admitted to practice.

Applicant’s Truthfulness Questioned

Holzhauser-Graber first applied to register as a candidate for admission to the Ohio bar in 1988. The Board of Commissioners on Character and Fitness received allegations that in two 1984 probate cases, Holzhauser-Graber had engaged in improper activities regarding the assets of her deceased mentor. While the allegations were unsubstantiated, the board found Holzhauser-Graber lied about the probate cases while under oath during her bar admission hearing. Based on the hearing, the board recommended Holzhauser-Graber not be allowed to take the 1989 bar exam. However, the Supreme Court allowed her to take exam, but ordered the results sealed until the February 1991 bar exam results were released.

Holzhauser-Graber was ordered to supplement information about her character and fitness to practice law before the 1991 results were revealed. The board approved her character and fitness in January 1991. The results of the February 1991 bar exam were released in May, and Holzhauser-Graber learned she failed the exam. Because her character and fitness had been approved, she applied and received permission to take the July 1991 exam.

After taking the July test, but before the results were released, the Findlay/Hancock County Bar Association informed the board that Holzhauser-Graber had committed perjury during the civil trial of a case that she filed against Blanchard Valley Hospital. Based on the allegation, her 1991 bar results were sealed, pending further review of her qualifications to practice law.

The board concluded that she did perjure herself during the trial, and the Court agreed with the board’s recommendation that she not be permitted to reapply for admission for two years and that the results of her 1991 exam remain sealed until the board approved of her character and fitness.

Multiple Applications for Admission Rejected

Since 1991, Holzhauser-Graber’s requests for admission have been denied several times as questions about her conduct in legal matters and the accuracy of her responses to the board were questioned.

Today the Court ruled on Holzhauser-Graber’s August 2016 application. In 2017, the Findlay/Hancock County Bar Association’s admissions committee recommended that the board reject her application and permanently bar her from reapplying. The board determined Holzhauser-Graber continued to have “great difficulty providing complete and truthful answers” during the character-and-fitness proceedings.

The board recommended that the Court not permit her to seek admission, but release the results of her July 1991 bar exam.

Holzhauser-Graber objected to the board’s recommendation, arguing she is qualified to be admitted to practice law pending her passage of the bar exam, and that if the Court rejects this application, she should be allowed to reapply.

Court Considers Case History

The Court’s lead opinion explained that Holzhauser-Graber must prove by clear and convincing evidence that she meets the qualifications to be admitted. Her conduct must justify that she can gain “the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them,” the opinion stated, noting that a deficiency of “honesty, trustworthiness, diligence, or reliability” may lead to denial.

While Holzhauser-Graber presented evidence from a clinical psychologist and other witnesses that characterized her as reliable and truthful, the Court found it was not enough to overcome her lack of candor during the admission proceedings. The Court noted that in this application she failed to completely disclose her past involvement in litigation and gave less-than-candid explanations of her application history.

The Court made no final determination on whether Holzhauser-Graber will be permanently barred from reapplying.

Applicant Has Not Earned Right to See Exam Results, Dissent Stated

In her opinion dissenting in part, Justice Kennedy wrote that Holzhauser-Graber has done nothing since her results were sealed in 1991 to earn the right to see them. She stated that the lead opinion can be read as “telegraphing the hope that the results will reveal” Holzhauser-Graber failed the 1991 bar exam and that her decades of “on-again, off-again attempts” to prove her character and fitness will come to an end.

The dissent stated that those applying to be lawyers must first demonstrate they have the character and fitness to practice law before being allowed to take the bar exam, and it follows that only those applicants who have demonstrated that they have the character and fitness to practice law can see their exam results.

Justice Kennedy noted that the Court reiterated in a 1996 review of Holzhauser-Graber’s case that “the applicant’s results from the July 1991 Ohio bar examination remain sealed until such time as she is approved as to her character, fitness, and moral qualifications for admission to the practice of law.” Justice Kennedy wrote that Holzhauser-Graber has yet to meet the requirements the Court imposed, and that unsealing the 1991 results now “weakens this court’s rules, lowers the standard of behavior for bar applicants, and disregards this court’s prior orders.”

“The guiding light in discipline and admissions cases is our precedent, and this court will have to explain away the result in this case in cases to come,” Justice Kennedy concluded.

2018-1425. In re Application of Holzhauser-Graber, Slip Opinion No. 2019-Ohio-4500.

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From the dissent

the majority rewards Holzhauser-Graber for her consistent and persistent mendacity. Although she has failed time and again in receiving approval of her character and fitness for purposes of being able to practice law in Ohio, she still gets to peek at her bar-examination results to spare this court and the committee another unnecessary character and fitness evaluation if it turns out that she failed the 1991 bar examination (assuming she does not reapply for the bar examination). It may seem like a practical solution, but at what cost? Holzhauser-Graber has done nothing since this court sealed her results from the 1991 bar examination to merit an unsealing. By breaking that seal, the majority weakens this court’s rules, lowers the standard of behavior for bar applicants, and disregards this court’s prior orders. The guiding light in discipline and admissions cases is our precedent, and this court will have to explain away the result in this case in cases to come.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/11/the-ohio-supreme-court-an-aspiring-lawyer-from-findlay-will-be-allowed-to-see-the-results-of-the-bar-exam-she-took-28-years.html

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