In re Application of McKinney ( 2012 )

[Cite as In re Application of McKinney, 134 Ohio St. 3d 260, 2012-Ohio-5635.]
IN RE APPLICATION OF MCKINNEY.
[Cite as In re Application of McKinney, 134 Ohio St. 3d 260, 2012-Ohio-5635.]
Attorneys—Character and fitness—Dishonest conduct and lack of candor during
application process require disapproval of application to take the bar
exam—Applicant may apply to take the July 2014 bar exam.
(No. 2011-1520—Submitted March 20, 2012—Decided December 5, 2012.)
ON REPORT by the Board of Commissioners on Character and
Fitness of the Supreme Court, No. 495.
________________
Per Curiam.
{¶ 1} Michele L. McKinney of Cincinnati, Ohio, registered as a
candidate for admission to the practice of law in June 2010 and applied to take the
February 2011 bar examination. The admissions committee of the Cincinnati Bar
Association disapproved McKinney’s application based on her lack of candor
regarding her conduct during her employment with a Cincinnati law firm in her
first year of law school and the reasons that that employment was terminated.
McKinney appealed and applied to take the July 2011 bar examination. After
conducting a hearing, a three-member panel of the Board of Commissioners on
Character and Fitness issued a report recommending that McKinney’s application
be denied because she did not at that time possess the requisite character, fitness,
and moral qualifications to be admitted to the bar. The panel, however,
recommended that she be permitted to apply as a candidate for the July 2014 bar
exam. The full board adopted the panel’s findings of fact, but citing McKinney’s
contradictory testimony, evasiveness, and lack of candor throughout the
admissions process, recommended that she not be permitted to reapply in the
future.
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{¶ 2} Although McKinney concedes that we should disapprove her
current application to take the bar examination, she objects to the board’s
recommendation that she be forever barred from reapplying and urges us to
permit her to take the February 2013 bar exam. We adopt the board’s findings of
fact and recommendation that McKinney’s current application be disapproved.
However, we sustain her objection in part and will permit her to reapply for the
July 2014 bar exam.
Summary of Proceedings
{¶ 3} McKinney began her law school career at the Salmon P. Chase
College of Law at Northern Kentucky University (“NKU”) in August 2007. The
following month, she accepted a paralegal position at the Cincinnati law firm of
Lerner, Sampson & Rothfuss (“LSR”).
{¶ 4} Before deciding to attend law school, McKinney had signed a lease
for an apartment in Louisville that she planned to occupy with her sister. Her
sister had not signed the lease because she had a mortgage that they believed
would financially disqualify her as a lessee. McKinney’s sister occupied the
apartment, but she began to experience serious health problems that prevented her
from working and left her unable to pay the rent. The sister planned to vacate the
premises, but McKinney would remain financially responsible for the three to
four months that remained on the lease. When she inquired about terminating the
lease early, McKinney was advised that she could sublet the property or her lease
could be canceled if she was transferred by her employer.
{¶ 5} Instead of attempting to sublease the property, McKinney planned
to fake an employment transfer by fraudulently producing two documents on her
employer’s letterhead—one to verify her transfer from Louisville to Cincinnati,
and the other to acknowledge that she had accepted the transfer. Both letters were
purportedly drafted for the firm by employee Kelly Richards, but Kelly Richards
did not exist. Concerned that the landlord would call the firm to verify her
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transfer, and believing that the landlord would recognize her voice, McKinney
changed the voicemail on a phone used by her sister to state that the caller had
reached the desk of Kelly Richards. McKinney’s sister would then call back and
pretend to be Ms. Richards.
{¶ 6} McKinney’s employer had a strict policy forbidding employees
from using company e-mail for personal purposes. Believing that McKinney was
violating the policy, the firm’s human resources director, Rachel Faris, began to
monitor her e-mail account in real time. Faris discovered that McKinney was
sending e-mails and then immediately deleting them from her sent folder. Faris
became more suspicious on March 21, 2008, when in the process of printing some
of those e-mails before McKinney deleted them, she found one that said, “I need a
contact number for my fake human resources person.” On further investigation,
Faris found an e-mail with the falsified letters on the firm letterhead attached.
Based upon the information uncovered by Faris’s investigation, Teresa Miller, the
firm’s chief operating officer, fired McKinney and her boyfriend (now husband)
that same day.
{¶ 7} In her application to register as a candidate for admission to the
practice of law, McKinney stated that her reason for leaving employment in
March 2008 was “terminated/conflicted with school schedule.” Later in her
application, she explained, “I was fired [for] using company email for personal
reasons.”
{¶ 8} Before conducting McKinney’s character-and-fitness interview,
the Cincinnati Bar Association contacted LSR, seeking additional information
about McKinney’s termination, and learned of her scheme to defraud her
landlord. The attorneys assigned to conduct her interview asked open-ended
questions, giving McKinney the opportunity to fully disclose the circumstances of
her termination. McKinney, however, did not voluntarily disclose that she had
created the fictitious letters on her employer’s letterhead. Nor did she
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acknowledge that the letters were the cause of her termination. When the
interviewers revealed their knowledge of the letters, McKinney was evasive.
{¶ 9} After the interview, McKinney grew concerned about the letters
and left a voicemail for one of the interviewers, asking him to call her if he had
additional questions, but the interviewers had already decided to recommend that
her application be disapproved.
{¶ 10} By the time the matter came before the full admissions committee
of the Cincinnati Bar Association, both McKinney and the committee had
obtained copies of her employment records and had had the opportunity to review
them. Included in those records was a memo that Faris had prepared to
memorialize McKinney’s termination meeting. Faris wrote that she attended the
meeting in which Miller told McKinney that her employment was being
terminated for violating company policy. Faris wrote that Miller advised
McKinney that she was very disturbed to discover that McKinney had falsified
documents on firm letterhead to avoid liability for her lease and that she had sent
an excessive number of personal e-mails on company time. Faris also noted that
she had personally notified the landlord of McKinney’s scheme to avoid her lease
obligation.
{¶ 11} Despite having reviewed Faris’s letter and acknowledging that she
had planned an elaborate scheme to extricate herself from her lease, McKinney
testified that she did not recall being informed that the false letters on the firm’s
letterhead were the reason for her termination. Although she expressed her
understanding of the serious nature of her conduct, she attempted to excuse her
evasiveness at her character-and-fitness interview, claiming that she had forgotten
many of the details. Expressing serious concerns about McKinney’s poor
judgment and lack of candor, the full admissions committee recommended that
her application be disapproved.
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{¶ 12} At the June 30, 2011 hearing before a three-person panel of the
Board of Commissioners on Character and Fitness, McKinney testified that she
was never told that her employment was terminated for using the firm’s letterhead
to create the fictitious letters. She stated that she was called to the firm’s human
resources office and that before she was fully seated, Miller told her that she was
being terminated. McKinney observed a quarter-inch stack of paper that appeared
to be personal e-mails sitting on Miller’s desk. Recognizing the top e-mail as an
exchange between herself and her boyfriend that contained embarrassing
comments, she declined the opportunity to review the documents with Miller.
She was then escorted to her desk and from the building. While this version of
events was consistent with McKinney’s statement in her application and her prior
testimony, it did not comport with Faris’s testimony that her March 21, 2008
memorandum accurately memorialized the termination meeting. The panel
believed that Faris’s testimony and contemporaneous memorandum were more
credible than McKinney’s testimony and therefore found that McKinney had been
advised that her creation of the fictitious letters on the firm’s letterhead and her
excessive personal e-mails were the basis for her termination.
{¶ 13} The panel found the remainder of McKinney’s record
unremarkable, despite her 2001 conviction for operating a vehicle while under the
influence of alcohol and five speeding tickets. Noting that McKinney did not
report two of the speeding tickets on her application, the panel attributed that
omission to inattention rather than deliberate misrepresentation. In contrast to
McKinney’s deceptive conduct, the panel noted that she had volunteered at a
domestic-violence and sexual-assault center, a street-law diversion program
through the juvenile court, and an animal shelter, and that she had served as the
president of the Student Advocacy Society while in law school. She also
presented five character references, including three letters from professors at
NKU, and a letter from a former employer, attorney Harry Sudman. Her current
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employer, attorney Thomas Richards, testified at the panel hearing that she has
worked for him since October 2008 and that he planned to keep her on after she is
admitted to the practice of law because she is a thorough researcher, interacts well
with clients, and gets good results. Although Richards believed that McKinney
was honest and had no reservations about her sitting for the bar exam, the panel
did not believe that he knew all the circumstances of her termination. The panel
recommended that her application be disapproved and that she be permitted to
reapply for the July 2014 bar exam.
{¶ 14} The board adopted the panel’s findings of fact, but noting that
McKinney was a 30-year-old law student when she engaged in deceptive behavior
to avoid liability on her lease and that she was evasive throughout the admissions
process, the board concluded that she would never be able to establish her
character and fitness to practice law. Therefore, the board recommended that her
application be disapproved and that she not be permitted to reapply for admission
to the practice of law in Ohio.
McKinney’s Objections to the Board’s
Recommended Sanction
{¶ 15} McKinney objects to the board’s recommendation that she be
forever barred from applying for the Ohio bar exam. She contends that she has
matured since her first year of law school, that her life is more stable, and that the
lengthy admissions process she has endured has had a profound impact on her.
She contends that although she was in her second semester of law school when
she falsified letters to avoid her lease, she had not received any instruction in
professional responsibility. Having completed her legal education, she argues that
she has a much better understanding of the high level of honesty and integrity that
attorneys must strive to maintain.
{¶ 16} In her objections, however, McKinney maintains that she was
honest and forthright in her character-and-fitness interview because she answered
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“yes” when asked if she drafted the letter regarding her lease. She argues that
when asked how she dealt with the remainder of the lease, she replied that she
found someone to sublease the apartment. McKinney characterizes this answer as
“fully and honestly disclosing the facts.” McKinney contends that the board has
placed undue weight on the reason given for her termination and her decision to
falsify the letters—even though she never sent them. She asserts that her
piecemeal disclosure of the relevant facts was not caused by any intent or attempt
to conceal her conduct, but was a defensive response to what she perceived as an
adversarial proceeding.
{¶ 17} McKinney urges this court to reject the panel’s assessment of the
credibility of the witnesses and to find that her testimony was more credible than
that of Faris. She points to alleged inconsistencies in Faris’s testimony, argues
that much of that testimony is hearsay because Faris did not speak during the
termination meeting, and suggests that Faris destroyed or altered evidence and
had a motive to lie to place herself and her firm in a good light.
{¶ 18} Much of Faris’s testimony was based upon her personal knowledge
of (1) the investigation she conducted into McKinney’s improper use of the firm’s
e-mail system for personal purposes, (2) the discoveries she made during that
investigation, (3) the recommendation she made to Miller, and (4) the actions she
observed Miller take in immediate response to that recommendation. That
testimony is not hearsay because it is not the statement of someone other than
Faris. See Evid.R. 801(A) (defining hearsay as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted”). Moreover, to the extent that Faris’s
testimony and written statements relate what Miller said at the meeting, they were
not hearsay because they were not offered to prove the truth of the matter
asserted, i.e., the actual reasons why the firm terminated McKinney’s
employment. Rather, they are offered to demonstrate what McKinney was told
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about her termination. Therefore, we do not find Faris’s testimony or her March
21, 2008 memorandum objectionable. Further, we reject McKinney’s claim that
Faris’s destruction of her handwritten notes after preparing her typewritten
memorandum was somehow suspect.
{¶ 19} The panel and board found that Faris’s testimony and her
memorandum memorializing the events of the termination meeting were more
credible than McKinney’s own self-serving testimony. In our independent review
of professional-discipline cases, we generally defer to a panel’s credibility
determinations unless the record weighs heavily against those findings, because
the panel observed the witnesses firsthand. Cincinnati Bar Assn. v. Statzer, 101
Ohio St. 3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8, citing Cleveland Bar
Assn. v. Cleary, 93 Ohio St. 3d 191, 198, 754 N.E.2d 235 (2001). In admissions
matters, the panel of the Board of Commissioners on Character and Fitness is,
likewise, in the best position to assess the credibility and weight of testimony
because it hears the testimony firsthand and can evaluate a witness’s demeanor,
tone, and inflection, which are not preserved in the record. Therefore, we find
that the credibility determinations of a panel of the Board of Commissioners on
Character and Fitness should receive the same deference.
{¶ 20} McKinney’s testimony that she did not link the termination of her
employment to the falsified documents she created on her employer’s letterhead
and sent through her work e-mail just hours before her employment was
terminated strains credulity. Even if she did not recall the stated reasons for the
termination of her employment or had blocked the events from her mind due to
the passage of time and difficult personal circumstances—including her sister’s
illness, her own difficult pregnancies, and the premature births of her two sons
during the pendency of this admissions matter—she bears the burden to prove by
clear and convincing evidence that she possesses the requisite character, fitness,
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and moral qualifications for admission to the practice of law. See Gov.Bar R.
I(11)(D)(1).
{¶ 21} We have stated:
The paramount concern in proceedings before the Board of
Commissioners on Character and Fitness is whether the applicant
possesses those moral traits of honesty and integrity which will
enable him to fully and faithfully discharge the duties of our
demanding profession. We view such proceedings as being
different from the adversary contest associated with, for example,
disciplinary cases. A hearing to determine character and fitness
should be more of a mutual inquiry for the purpose of acquainting
this court with the applicant’s innermost feelings and personal
views on those aspects of morality, attention to duty, forth-
rightness and self-restraint which are usually associated with the
accepted definition of “good moral character.” Such a view
commands the utmost in cooperation between the applicant and the
board, and leaves little room for the employment of doctrines
which work to keep relevant information from the board.
Although those devices are valid and proper in many instances,
they should not be invoked before a body whose sole function is to
fully determine all the facts which can logically reflect upon the
wisdom of admitting an applicant with a questionable background
to the practice of law.
In re Application of Davis, 38 Ohio St. 2d 273, 274-275, 313 N.E.2d 363 (1974).
{¶ 22} Here, McKinney was less than candid throughout the admissions
process. Regardless of her understanding of the reasons for her termination, once
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the committee members began to ask questions about the letters she had falsified,
McKinney should have fully disclosed the circumstances surrounding her drafting
of the letters, the content of those letters, and the reason that she failed to send the
letters. Instead, she disclosed only that she had “drafted a letter for personal use
on law firm letterhead.” She did not voluntarily divulge that the purpose of the
letter was to breach her legal obligations under the lease, that she had contrived a
fictitious human resources representative, or that she had planned to have one of
her sisters portray the fictitious representative if the landlord attempted to confirm
the content of the letter.
{¶ 23} McKinney’s explanations for her conduct were ever-changing.
Though she admitted that she had received a copy of her personnel file, she
testified that she had not reviewed it in its entirety before her interview with the
full admissions committee of the Cincinnati Bar Association. She later admitted
that her husband had read the file, noticed the memorandum from Faris, and
advised her that the falsified letters were discussed in the memorandum. Despite
her possession of her personnel file and her husband’s statements, she told the full
admissions committee that she did not recall the details of the circumstances
giving rise to her termination. At the panel hearing, however, McKinney
admitted that it had crossed her mind that her termination may have been related
to the letters she had falsified on the firm’s letterhead.
{¶ 24} An applicant’s failure to provide complete and accurate
information concerning his or her past false statements, including omissions, and
acts involving dishonesty, fraud, deceit, or misrepresentation are all factors that
may constitute a basis for disapproval of the applicant. See Gov.Bar R.
I(11)(D)(3). McKinney admitted that she knew that it was against firm policy to
use her employer’s e-mail for personal purposes, but she did it and tried to cover
up her deceit by immediately deleting the sent e-mails. She knew that it was
wrong to falsify letters on her employer’s letterhead, but she did it anyway. And
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although McKinney attempted to portray her drafting of the falsified letters as the
act of a caring sister stepping in to help her gravely ill sister, in truth, McKinney
was contractually bound by the lease. Moreover, McKinney’s dishonesty and
misrepresentation did not end with her first year of law school, but continued on
her application as a candidate for admission to the bar and throughout the
admissions process.
{¶ 25} Despite McKinney’s recent and troubling pattern of dishonest
conduct, the panel members expressed their belief that with time, McKinney
could rehabilitate herself and one day prove that she possesses the requisite
character, fitness, and moral qualifications for admission to the practice of law.
We agree. McKinney applied herself in law school, has engaged in valuable
volunteer experiences, and has presented testimony and letters from three of her
law school professors, a former employer, and her current employer who
represented her before this court and hopes she will one day work as an attorney
in his office. Furthermore, McKinney appears to be genuinely remorseful for her
conduct in drafting the falsified letters on LSR letterhead. We believe that
McKinney may mature with time and may one day be able to demonstrate that she
possesses the requisite character, fitness, and moral qualifications to be admitted
to the bar of Ohio. We therefore adopt the board’s findings of fact, disapprove
McKinney’s current application to take the bar exam, sustain McKinney’s
objection in part, and adopt the panel’s recommendation that she be permitted to
reapply as a candidate for the July 2014 bar examination by submitting a new
application to register as a candidate for admission to the bar and an application to
take the bar examination. At that time, she shall submit to a full character-and-
fitness investigation.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
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____________________
Thomas D. Richards, for applicant.
Mann & Mann, L.L.C., and Michael T. Mann; and Thompson Hine, L.L.P,
and Christopher D. Wiest, for the Cincinnati Bar Association.
_______________________
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