In re Application of Cvammen - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as In re Application of Cvammen, 102 Ohio St.3d 13, 2004-Ohio-1584.]

IN RE APPLICATION OF CVAMMEN.
[Cite as In re Application of Cvammen, 102 Ohio St.3d 13, 2004-Ohio-1584.]
Attorneys at law -- Application to take Ohio Bar Examination denied and
applicant permanently denied admission to practice law in Ohio when
applicant's ethical infractions so permeate the admissions process that
applicant's honesty and integrity are shown to be intrinsically suspect.
(No. 2003-1366 -- Submitted October 20, 2003 -- Decided April 14, 2004.)
ON REPORT of the Board of Commissioners on Character and Fitness of the
Supreme Court, No. 252.
____________________

Per Curiam.
{¶1} Applicant, Bradford Scott Cvammen of Akron, Ohio, filed an
application on August 15, 2002, to register as a candidate for admission to the
practice of law in Ohio. On December 17, 2002, members of the Akron Bar
Association Admissions Committee interviewed applicant as part of the review
process to determine whether he possessed the requisite character, fitness, and
moral qualifications for admission to the Ohio bar. Gov.Bar R. I(11)(C) and (D).
The interviewers recommended that applicant's candidacy be disapproved
temporarily because he had not fully and truthfully answered questions about the
circumstances surrounding his forced resignation from employment with a real
estate company. In reporting to the Board of Commissioners on Character and
Fitness, the admissions committee also recommended that respondent's candidacy
be disapproved.
{¶2} Respondent appealed from the committee's recommendation
pursuant to Gov.Bar R. 1(12)(B). A panel appointed by the board heard the

SUPREME COURT OF OHIO
appeal on May 6, 2003.1 Evidence presented established, for the purpose of this
proceeding, the following facts.
{¶3} Appellant graduated in the spring of 2003 from the University of
Akron School of Law and applied to take the July 2003 bar examination. During
law school, he worked full-time for a commercial real estate company that leased
property to tenants in shopping centers and warehouse distribution districts.
Applicant began working for his employer in 1994 as a property manager,
advancing quickly over the years to eventually become the director of the
company's retail properties.
{¶4} As the director of retail properties, applicant showed space for
lease to prospective tenants, managed building operations and construction
projects, negotiated lease agreements, evaluated improvements, and developed
rental space plans. He enjoyed considerable autonomy in his position but also
reported almost daily to his supervisor, the president of the company.
{¶5} In the course of this employment, applicant leased contiguous
space in a shopping center to two retail tenants: one an Arabica Coffeehouse
franchisee, the other a Heavenly Ham franchisee. The owner of the Arabica
Coffeehouse eventually decided to sell his business and thus wanted to get out of
his lease. Because applicant's employer encouraged him to work with tenants in
this situation,2 he contacted the owner of the Heavenly Ham store in or around
June 2000 and inquired whether the owner would be interested in taking an
assignment of the lease of the coffeehouse space. The two tenants consented to
this arrangement and negotiated an assignment. Afterward, the Arabica
Coffeehouse tenant paid respondent $5,000 for his assistance. Respondent kept

1. The parties agreed to review by only two of the three panel members appointed to hear the
cause.
2. A lessor has a duty to mitigate damages, as is reasonable under the circumstances, caused by a
lessee's breach of a commercial lease. Frenchtown Square Partnership v. Lemstone, Inc., 99 Ohio
St.3d 254, 2003-Ohio-3648, 791 N.E.2d 417, syllabus.
2

January Term, 2004
this money and did not disclose the payment to his employer. He also did not
report the $5,000 payment as income on his 2000 tax return in April 2001.
{¶6} Over the next year, the Heavenly Ham store tenant defaulted on his
original lease and the assigned lease. In July 2001, the real estate company
brought an eviction action and also sued both tenants for unpaid rent. With the
lawsuit looming, the Arabica Coffeehouse tenant contacted applicant and, after
they discussed the situation, applicant became concerned that the $5,000 payment
would be exposed during the litigation. Applicant subsequently disclosed the
$5,000 payment to his employer, and his employer, after discussions among the
board of directors and officers, asked for his resignation. In November 2001,
applicant tendered his resignation.
{¶7} In completing his bar application the next year, applicant was
asked to provide the "full particulars as to the reasons" for which he was asked to
resign from his job. Applicant related that he had been asked to resign by the real
estate company after he had "earned a sum of money for finding a buyer" for one
of the company's tenants. He gave the impression that no company policy
prevented this practice and that it was not "uncustomary in the industry." He also
described the reason for his resignation as the "political" decision of a major
shareholder and board member who, according to applicant, had forced him out
while telling the remaining board members that he had quit to pursue his
education full-time.
{¶8} When applicant appeared for his character interview in December
2002, his interviewers confronted him about the resignation. Applicant revealed
the additional facts that the tenant had paid him $5,000, that he had accepted this
money without telling his employer, and that he had not reported the payment as
taxable income. According to one interviewer, applicant's excuse for not
reporting the income was that "the tenant hadn't given him a 1099 [reporting
form], so the IRS would never know."
3

SUPREME COURT OF OHIO
{¶9} During the panel hearing, applicant presented three character
references and his own testimony. Judge Brenda Unruh of the Summit County
Court of Common Pleas, who had known applicant socially for approximately one
and one-half years prior to the hearing, assured the panel of his integrity. She also
described a telephone conversation they had had after he received notice of the
committee's disapproval. Judge Unruh attested that while applicant had initially
insisted that his forced resignation was political, or personal in nature, he began to
realize the impropriety of his conduct after they discussed further the conflict of
interest and deceit in which he had engaged. The judge added that in interactions
after this discussion, applicant consistently acted in a manner demonstrating his
contrition, his having accepted responsibility for his mistakes, and his
commitment never to repeat those improprieties.
{¶10} Applicant's other references were the real estate company's
president and vice-president. The president, a mentor of applicant's who had
opposed his forced resignation, also assured the panel of applicant's high moral
and ethical character. The president testified that although applicant accepted the
$5,000 payment, concealed it, and did not report it as income, the president was
convinced that applicant had since appreciated the wrongfulness of his conduct
and had learned a valuable lesson from these mistakes. The vice-president, it was
agreed, would have testified that he, too, was aware of the events surrounding
applicant's resignation, including his failure to report income. Notwithstanding
this, the vice-president still recommended applicant's character and moral fiber,
believing that the incident had been an "eye-opening" experience for him.
{¶11} For his part, applicant testified on direct examination to the facts of
the $5,000 secret side deal and his subsequent failure to report this income. He
emotionally conceded his wrongdoing, apologized, and promised never to repeat
his transgressions. Applicant also proved that after he had received notice of his
4

January Term, 2004
disapproval, he amended his tax returns to declare the $5,000 payment and paid
the applicable taxes and penalties.
{¶12} After the panel considered all of the foregoing evidence, it
remained troubled, as had been the admissions committee, about applicant's
ability to tell the truth. The panel concluded that applicant's bar application
responses, interview answers, and testimony did not comport with other
witnesses' testimony at the hearing, adding that he often contradicted himself. In
describing its assessment of applicant's credibility, the panel observed:
{¶13} "While stating that he did wrong, Applicant's words, manner and
demeanor continue to indicate that he really doesn't accept responsibility [for his
wrongdoing]; it is more a matter that, having been caught, he is now sorry that he
did something that is standing in the way of his becoming a lawyer. He continues
to try to explain away his actions which inevitably leads to inconsistencies in his
testimony and in the appearance he makes."
{¶14} The panel recommended, in effect, that respondent's application to
register as a candidate for admission to the Ohio bar be disapproved but that he be
permitted to reapply in anticipation of taking the February 2004 bar examination.
The board adopted the panel's findings but modified its recommendation. The
board recommended, in effect, that respondent's application be disapproved but
that he be permitted to reapply for admission in anticipation of taking the
February 2005 bar exam.
{¶15} We concur in the panel's findings, as adopted by the board, that
applicant has not established his character and fitness as required for admission to
the Ohio bar. We do not, however, accept the premise that he may acquire these
moral qualifications in the future and that his bar application should be merely
postponed. Instead, because applicant has consistently exhibited duplicitous
behavior, we are convinced that he must be permanently denied the privilege of
applying for admission to the practice of law in this state.
5

SUPREME COURT OF OHIO
{¶16} "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, forthrightness and self-restraint which are usually associated with the
accepted definition of `good moral character.' " In re Application of Davis (1974),
38 Ohio St.2d 273, 274, 67 O.O.2d 344, 313 N.E.2d 363.
{¶17} In re Application of Davis criticized an applicant's reliance on the
attorney-client privilege to keep damaging yet salient character information
concerning his prior felony conviction from the board. Because the board's 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," we held that the board's review commanded "the utmost in cooperation
between the applicant and the board, and [left] little room for the employment of
doctrines which work to keep relevant information from the board." Id, 38 Ohio
St.2d at 274-275, 67 O.O.2d 344, 313 N.E.2d 363. The same rule applies here.
An applicant's complete and impeccably honest report is required for any
information that possibly reflects on the applicant's moral fiber and fitness to
fulfill the position of trust in which an attorney is placed by clients.
{¶18} That applicant defied this duty throughout the admissions process
was made abundantly clear by testimony before the panel. Applicant gave the
impression on his bar application that side deals were customary in real estate;
however, the real estate company president testified that taking money "under the
table" was not an accepted practice in his business. After persistent questioning,
6

January Term, 2004
even applicant conceded that side deals were "probably more customary for a real
estate agent" than for someone in his position as an in-house leasing agent.
Applicant testified inconsistently about precisely when he realized the
impropriety of taking the $5,000 payment and his failure to report it as income.
Initially, he presented Judge Unruh's testimony that he had fully realized the
extent of his wrongdoing only after consulting her. On cross-examination,
however, applicant conceded that he had earlier acknowledged his improprieties
and expressed his remorse to his interviewers, an exchange that was also marked
by his emotional promises to "do better." And when asked whether he realized
that he had not reported the $5,000 as income after his November 2001
termination, applicant testified first that he "inherently knew" but later that this
realization did not "dawn" on him until "closer" to his December 2002 interview.
Moreover, in response to intense inquiries from the panel, applicant revealed for
the first time that the Arabica Coffeehouse tenant had originally offered him
$10,000 for what he claimed to have been no more than his help in finding an
assignee of the lease.
{¶19} Equally disturbing is applicant's inability to settle on the reason
that he had failed to report the $5,000 payment as income. Applicant testified that
he had initially forgotten about the payment in filing his taxes. He also testified
that he had not known whether he had had to report the payment, implying that he
might have considered the money a gift rather than earned income. Either way, it
is patently clear from applicant's testimony that he lied to his interviewers about
why he had not reported the payment for tax purposes. In response to additional
probing by the panel, respondent ultimately admitted that the explanation he had
provided during his interview that he did not report the income because he had
not received a 1099 form -- "didn't have anything to do with it."
{¶20} Hedging and inconsistencies were the standard as applicant
attempted to establish his character and fitness. His testimony revealed a
7

SUPREME COURT OF OHIO
propensity to conceal actions his acceptance of the $5,000 secret payment and
failure to report it as income -- which he knew to be wrong. He was also caught
having told at least one unmitigated lie.
{¶21} Applicant's false or incomplete answers on his application and in
his interview and his continued attempts to avoid the truth in his testimony
confirm for us what the panel and board surmised that the applicant lacks
integrity. As the panel and board found, applicant knew that his receipt of the
$5,000 payment was wrong, he disclosed the payment only because he feared
exposure, he compounded his deceit by deliberately failing to report the payment
as income, and he then attempted to conceal the extent of his wrongdoing through
evasive responses to legitimate questions.
{¶22} Evidence of false statements, including material omissions, and
lack of candor in the admissions process reflect poorly on an applicant's
character, fitness, and moral qualifications. In re Application of Panepinto
(1999), 84 Ohio St.3d 397, 704 N.E.2d 564. Where, as here, these ethical
infractions so permeate the admissions process that the applicant's honesty and
integrity are shown to be intrinsically suspect, our disposition must be to
permanently deny his application to register as a candidate for admission to the
Ohio bar. Accordingly, applicant is permanently denied admission to the practice
of law in Ohio.
Judgment accordingly.

MOYER, C.J., RESNICK, F.E. SWEENEY and O'CONNOR, JJ., concur.

PFEIFER, LUNDBERG STRATTON and O'DONNELL, JJ., dissent.
__________________

Lundberg Stratton, J., dissenting.
{¶23} I dissent from the majority's opinion. I would permit the applicant
to register as a candidate for admission in anticipation of taking the February
2005 bar exam. A permanent refusal is the equivalent of a disbarment. Had the
8

January Term, 2004
respondent committed similar acts after becoming an attorney, we would have
given him at most an indefinite suspension and permitted him later to demonstrate
that he had rehabilitated himself before rejoining the bar. In this case, there was
no theft involved and no clients harmed although the conduct involved
dishonesty. While I do not condone his behavior, I believe it was such that
respondent ought to be given a chance to rehabilitate himself and then be
permitted to apply again for admission to the bar.
{¶24} Therefore, I respectfully dissent.

PFEIFER and O'DONNELL, JJ., concur in the foregoing dissenting opinion.
__________________

Robert C. Baker, for applicant.

Kim R. Hoover, for Akron Bar Association.
__________________
9