31
Submitted on the briefs April 19, application for admission to practice of law
denied December 2, 2021
In the Matter of the Application for
Admission to Practice Law:
KEVIN RICHARD KAUFFMAN,
Applicant.
(SC S067932)
499 P3d 801
Following its investigation of applicant’s character and fitness to practice
law, the Board of Bar Examiners recommended that applicant be denied admission to the Oregon State Bar; applicant contended, instead, that he had met his
burden to show that he possesses the good moral character to practice and that
he therefore should be admitted, even if only conditionally. Held: Applicant had
not established by clear and convincing evidence that he has the requisite good
character to practice law.
The application for admission to the practice of law is denied.
Application for admission to the practice of law in Oregon.
Kevin Kauffman, Portland, filed the briefs pro se.
Susan R. Cournoyer, Assistant Disciplinary Counsel,
Tigard, filed the brief for the Oregon State Bar.
PER CURIAM
The application for admission to the practice of law is
denied.
32 In re Kauffman
PER CURIAM
In this lawyer admission proceeding, the Board of
Bar Examiners (board), represented by the Oregon State
Bar (Bar), recommends that applicant be denied admission
to the Bar, following its investigation of his character and fitness to practice law. Rule for Admission of Attorneys (RFA)
6.05. Applicant contends that he has met his burden to show
that he possesses the good moral character to practice, as
required by ORS 9.220(2)(a), and that we therefore should
admit him, even if only conditionally. On de novo review, we
agree with the board that applicant has not met his burden
and we deny his application for admission.
I. FACTS AND PROCEDURAL BACKGROUND
Applicant applied to become a member of the Bar
in 2018 and again in 2019. The board’s adverse recommendation is based on a number of considerations, most notably certain omissions from his applications; ensuing developments relating to both those omissions and the board’s
further requests for information; and applicant’s responses
during an interview with a small panel of board members.
See generally In re Halttunen, 367 Or 360, 362,
478 P3d 488
(2020) (court has charged board with investigating and evaluating applicant character and fitness (citing RFA 2.10(2);
RFA 6.05)). We first briefly describe the key omitted information and then summarize other material from the applications and related factual and procedural background.
A. Omitted Information—Ohio Employer and Related
Matters
In 2016 and 2017, applicant worked in Idaho for an
Ohio data company (Ohio employer) in a fraud-reporting
unit. According to applicant, while employed there, he
was subject to harassing treatment by a supervisor and
he reported having been subject to further mistreatment
after reporting the harassment. He also observed businessrelated conduct that he thought troublesome and sought to
report it. The employer eventually suspended him and ultimately, in July 2017, discharged him. Throughout the suspension and discharge process, the employer accused applicant of misconduct; for his part, applicant refused to sign
Cite as 369 Or 31 (2021) 33
documentation that he thought inaccurately described his
conduct.
Following his discharge, applicant complained about
the Ohio employer on various websites. In September 2018,
one of the employer’s executives, Miller, filed police reports
with the City of Columbus, stating that applicant had sent
her multiple emails and social media communications, with
some causing her to fear for her safety. Based on those
reports, applicant was charged in municipal court with two
misdemeanors—menacing by stalking (mental distress) and
telephonic harassment—with accompanying arrest warrant
notices. The employer also obtained a civil restraining order
against applicant, apparently related to the same or similar
communications. For his part, by this time living in Oregon,
applicant grew concerned about certain conduct directed
toward him in Oregon that he thought that the employer
or its attorney had instigated, and he reported at least one
such incident to local law enforcement.
B. Applicant’s 2018 and 2019 Bar Applications
1. Information about employment and criminal matters
Applicant graduated from law school in 2009 and
first applied for admission to the Bar in April 2018. Among
other things, the Bar application asks for “yes” or “no”
answers to several questions, with direction to supplement
“yes” answers with additional information. Two such questions raised issues here: (1) whether applicant ever had been
cited, arrested, charged, or convicted of a criminal offense
(“criminal matters question”); and (2) whether applicant
ever had been discharged or asked to resign from employment (“discharge question”). Additionally—and also raising
an issue here—an applicant must list the applicant’s current and previous five employers and supervisors, including
volunteer work (“employer question”).
On his 2018 application, applicant answered “yes”
to the criminal matters question, listing three incidents: a
2000 arrest for a domestic disturbance involving a romantic
partner (either no charge filed or dismissed); a 2004 arrest for
disorderly conduct (involving the same partner; dismissed);
and a 2009 or 2010 misdemeanor charge for reckless driving
34 In re Kauffman
(plea), with brief explanations.1 He also answered “yes” to
the discharge question, but he identified only a cellular company as an employer that had discharged him (in early 2018);
he did not name the Ohio employer. Finally, when answering the employer question, applicant listed a combination
of three current and three former employers and volunteer
organizations, generally covering the years 2014 to 2018. He
did not, however, list the Ohio employer. Applicant took, but
did not pass, the July 2018 bar examination.
Applicant again applied for admission in 2019, submitting his application in March. On the criminal matters
question, he listed the same three incidents as in his 2018
application and added two more: a 2002 disorderly conduct
citation (again involving the same partner as in other incidents); and a 2018 traffic citation. He also disclosed that
the 2009 or 2010 reckless driving incident had included a
charge for driving under the influence of intoxicants. On the
discharge question, he repeated the 2018 cellular company
employer information and added another 2018 discharge,
from a merchandising company, but again did not list the
Ohio employer. And, on the employer question, applicant
again did not list that employer. He did, however, include
one vague reference to that employer in a different part of
his application—immediately following his attached narrative descriptions about his criminal charges—where he
wrote:
“2018-2019. In dispute with former employer. I have not
sued yet, still gathering evidence. The exchanges have
become tense including requiring me to file reports.”
Applicant provided no additional detail and did not identify
the employer.
2. Other information provided to support applicant’s
2019 application
Applicant provided other information on his 2019
application, or in later supplements, in an effort to show
his good character and fitness to practice. As to his legal
academic background, applicant passed all his law school
1
Applicant submitted his 2018 application before the conduct that prompted
the Ohio criminal charges was alleged to have occurred.
Cite as 369 Or 31 (2021) 35
courses with no misconduct incidents; he took but did not pass
the California bar examination (in 2010, 2013, and 2015),
although he did receive a favorable moral character review
(in 2011). Applicant also provided references showing favorable employment and rental history, and he described a long
history of participating in tennis as a player, teacher, and
athletic director, with favorable references and no conductrelated complaints. Finally, after the 2018 Oregon bar
examination, applicant participated in the Bar’s “ReBar”
program, which helps law school graduates retaking the
examination and required completing sessions with the
Oregon Attorney Assistance Program (OAAP).
C. Additional Factual and Procedural Background
1. Fall 2019 communications with admissions staff
Applicant passed the July 2019 bar examination. In
September, before the results were released, the Admissions
Coordinator, Hansen, notified him that his character and
fitness investigation was not complete, and applicant provided information that he understood to be missing, but
none related to the Ohio employer. On or around October 10,
Hansen asked applicant for information about the “Ohio
matters” to which he cryptically had referred in his 2019
application, and he confirmed that he would respond in
writing. In the meantime, applicant began emailing an
Assistant City Attorney in Columbus, Phillips, regarding
the Ohio criminal matters. At some point, according to
applicant, Phillips told him on the phone that the criminal
case was “closed.”
On October 14, 2019, applicant submitted an addendum to his 2019 application, which summarized the “Ohio
Matters” as follows: (1) Applicant had started to resolve
harassment charges against him; (2) he was in a civil dispute
with the Ohio employer; (3) during his employment, he had
been harassed by a supervisor, in part relating to his sexual
orientation, and he had been harassed after reporting that
conduct; (4) also during that employment, he had reported
employer misconduct relating to certain business processes; (5) after he had reported “the continued misconducts
against me,” the employer started the discharge process,
36 In re Kauffman
but applicant had refused to sign inaccurate documentation
alleging misconduct on his part; (6) he had learned that the
employer had filed a restraining order against him and had
reported him to Ohio law enforcement, but he never had
been to Ohio nor been contacted by Ohio law enforcement;
(7) based on his communications with Phillips, he thought
that “the case [was] closed”; and (8) he had filed his own
police report (in Oregon) against the employer, regarding
a purportedly troubling incident that he thought that the
employer had instigated. In his addendum, applicant again
did not identify the Ohio employer, although he provided a
hyperlink to a website purportedly containing complaints
about one aspect of the employer’s business. In response
to the addendum, Hansen asked for additional documents
relating to the Ohio matters and applicant confirmed that
he would gather and provide them.
Over the next two days, however, applicant engaged
in a series of email exchanges with both Hansen and the
Bar’s admissions manager, Wood, in which applicant
became increasingly resistant, pejorative, and hostile. For
example, he asserted that Hansen’s requests for information
were unwarranted and inappropriate, stated that he did not
need to comply, and suggested that Hansen had a conflict
of interest. Eventually, after Wood repeated the requests2
and also reminded applicant that his communications with
the board and admissions staff were relevant to the board’s
character and fitness determination, applicant provided
some additional information. He stated that the Ohio matters had involved “legal and criminal proceedings,” in which
the Ohio employer—which he finally identified by name—
and its executive who had filed the charges, Miller, were the
“criminals.” And, in an email containing some confusing and
nonresponsive passages, he added that he had “answered
the questions posed and given the information needed,”
and again questioned Hansen’s motives. In response, Wood
2
Among other things, Wood requested (1) specific information about the Ohio
employer (including identifying the employer and providing relating reports);
(2) specific information about applicant’s interactions with Ohio and Oregon law
enforcement related to the employer; (3) copies of applicant’s written communications with Phillips; and (4) narratives explaining his conduct, the events leading
to criminal charges, and why the charges had not been disclosed on his 2019
application.
Cite as 369 Or 31 (2021) 37
wrote that applicant’s failure to fully cooperate could be considered in the board’s admission determination. Applicant
immediately responded by vaguely comparing admissions
staff’s “unrealistic requests” to “ ‘war’ ” and asserting that
he would “stand firm on [his] rights and how [he would] be
treated.”
The following day, in an email entitled, “RE: The
‘investigation’ created by … Wood and … Hansen,” applicant sent Wood some additional information and copies of
documents relating to the Ohio employer. Applicant added
that he had been the victim of criminal conduct perpetrated
by the employer; that he had been stalked and harassed;
and that he should have obtained a restraining order himself. The attachments included a May 2018 letter from
applicant to the United States Attorney’s Office in Dayton,
reporting fraud and other misconduct by the employer and
certain employees, and three letters that applicant had
sent to attorneys for either the employer or Miller, or both,
reporting that Miller had broken laws and directed others
to stalk and harass him.
Through a public records request, admissions staff
confirmed the September 2018 Ohio criminal charges
against applicant—as noted, menacing by stalking (mental
distress) and telecommunications harassment—with indicators that both were in “closed” status. By November 2019,
staff obtained more detailed records, showing allegations
from Miller that, since May 2018, applicant had sent her
more than 50 harassing emails and social media communications, with the nature of some communications causing
her to fear for her safety.
2. December 2019 small panel interview
The board asked applicant to appear for an interview with a small panel composed of four board members
(“panel”), which took place in December 2019. RFA 6.05(2).
During that interview, the panel asked about the Ohio matters and applicant’s failure to disclose them on his 2019 application, as well as his employment history, earlier arrests
and criminal charges, and the tone of his emails to Hansen
and Wood. Applicant answered all the panel’s questions, but
38 In re Kauffman
many answers were contradictory, unclear, or incomplete, as
summarized next.
First, applicant acknowledged that, on the employer
question, he had not listed the Ohio employer as one of his
previous five employers, but he denied any deceptive intent.
Applicant confirmed that he had listed an older employer for
whom he had not performed any work since 2015; he also
disclosed to the panel yet another employer who had discharged him in 2018 and another short employment in 2018,
neither of which had been listed on his 2019 application. The
panel observed that, had the older employer from 2015 been
omitted, the more recent Ohio employer chronologically
would have been included, and it questioned whether applicant intentionally had listed only “positive” employment
experiences. Applicant responded that, in response to the
employer question, he had listed employers with whom he
had had good working relationships.
Second, applicant acknowledged that he “definitely”
should have included the Ohio employer on the discharge
question. After initially appearing surprised that he had
not included it on his 2018 application, he stated that he was
not sure why he had not included it on the 2019 application,
adding that he had no “exact answer” as to why he omitted
it. Applicant also said that he may not have listed the Ohio
employer because the related issues had been complicated
and he did not know how much detail to provide. `
Third, when asked about the Ohio criminal charges,
applicant provided unclear or contradictory responses about
the nature of the underlying conduct, the date when he had
learned about the charges, and the efforts that he had made
to resolve them. As to the underlying conduct, applicant initially stated that it might have involved some argumentative
communications with the Ohio employer’s attorney. But he
also acknowledged that he had complained, though not in a
“threatening” manner, about the employer on his own social
media accounts and in comment sections on other businesses’ websites, and he acknowledged sending two emails to
Miller. As to when he had learned of the Ohio charges, applicant varyingly stated that (1) he had learned about them
Cite as 369 Or 31 (2021) 39
“last fall [or] last winter,” but did not know for certain; (2) he
had tried to get more information but never had been contacted by Ohio law enforcement; (3) he had “confirmed” the
charges “this year” but had still been “piecing it together”
when he had filed his application (in April 2019); (4) he was
scared to contact Ohio officials; and (5) he definitively had
learned about the charges when Hansen had asked about
them. As to resolving the charges, applicant reported that
Phillips had told him that the matters were closed, but then
a county clerk more recently had told him that he needed to
appear. Applicant added that Phillips had conveyed that, if
he had any issue with Ohio law enforcement, then he should
file a claim with the police bureau.
As to the Ohio employer matters generally, the following exchange is representative of applicant’s responses
during his panel interview:
“[Q:] So … here’s what we’re getting at[.] [The Ohio
employer]—you’ve already said [that was] the biggest, …
most stressful, most frustrating experience you’ve had in a
job, getting terminated, … several workplans and reprimands, … is that fair to say?
“[A:] Hmm. Hmm. [affirmative response]
“[Q:] That was all very memorable. [Then,] you have
two bar applications that expressly ask whether you’ve
been terminated, and you didn’t include that in either one.
You also have two applications in which they asked if there
has ever been any civil proceeding, or have you ever been
charged with any crimes, … and you don’t mention that.
The most you mention, the most you reference, [is] a very
vague, ‘in dispute with former employer’—who you don’t
name, and you don’t name the city and town—that you have
not sued yet, you are still gathering evidence, exchanges
have become tense, including requiring you to file reports.
“But here’s the concern we have, it seems like when you
are applying and you … see the nature of these questions,
you would know that that was something that we would
need to know about and consider in evaluating your application. It feels like you intentionally excluded those so that
it wouldn’t have a negative effect on your application. …
[W]e can’t think of another explanation, and that’s why
we’re asking you if there is one.
40 In re Kauffman
“[A:] There was no intent in mind. It, you know, …
I’ve talked about [the Ohio employer] quite a bit here, I’ve
talked to other people about [that employer.] When I’ve had
that come up on job interviews, I’ve talked about it. So,
… you know, … all I can do is apologize for that—that’s
something that should be on there and [I] apologize for it,
I don’t know what else to offer. Other than, I understand
what you are saying, it’s been said to me by all of you, so I
get it, and I apologize, I’m acknowledging it should be on
there, … that’s something that’s important, but I’ve been
willing to talk about it and discuss the events that have
happened there, discuss it now, or answer any questions
relating to it. … I don’t know what else I can do.”
The panel also asked applicant about several of his
emails to Hansen and Wood. Applicant acknowledged that
some had been aggressive or hostile, uncivil, and reflective
of impulsivity—recounting his frustration that his admission had been stalled after he passed the bar examination
and his confusion about the process. He reported meeting
with an OAAP counselor to discuss those communications
and how to avoid sending similar ones in the future.
At the close of the interview, the panel asked applicant to submit certain documents and other information.
3. Additional procedural background and board recommendation
In December 2019, applicant emailed an apology
to Hansen. But, at some point, he learned from a different
applicant that that applicant’s investigation process had differed from his own in certain respects, which prompted him
to think that he had been treated unfairly. In late January
2020, he wrote to Hansen and others, copying the Bar’s
General Counsel, accusing Hansen of treating him differently from the other (unidentified) applicant and characterizing a recent email from Hansen as a “threat.” On the same
day, applicant submitted an expanded supplemental statement that added the following brief information about the
Ohio employer:
“I have received various information but trying to confirm
what is true and not. I reported some of the things to police.
This former [Ohio] employer has also involved the police,
Cite as 369 Or 31 (2021) 41
the [latter] has not contacted me directly. My attempts to
gather accurate information have mostly been ignored.”
His statement also acknowledged yet another criminal
charge that he had disclosed in his panel interview but
not included in his applications, involving a 1996 physical
altercation with a sibling (dismissed). Further, admissions
staff—on its own—confirmed that applicant also had been
cited for aggravated theft in 2003 (apparently dismissed),
which he had not disclosed at any time.
Over the next several weeks, applicant sent many
emails to Hansen, Wood, the Bar’s General Counsel, and
others. In response to outstanding requests for his 2018
emails and social media communications involving the Ohio
employer, he did provide one communication to the employer,
from 2017. Otherwise, he insisted that he already had disclosed all pertinent information. He also questioned Wood’s
authority and spoke in a pejorative manner to Hansen.
Applicant also asserted that—as a minority based on his
sexual orientation—he was being treated differently from a
“white male heterosexual applicant,” due to “ ‘entitled’ white
privilege” and that staff had acted with a bias reflecting a
desire to prevent a gay man from practicing law.
Meanwhile, admissions staff had asked Phillips—
the City of Columbus attorney whom applicant had contacted
in October 2019—for information about their conversations.
Phillips responded by letter in March 2020, attaching four
emails from applicant (and Phillips’s responses). The first
three emails were from October—emails that Wood repeatedly had asked applicant to provide, but he had not. During
his panel interview, applicant had characterized his October
communications with Phillips as his attempt to confirm the
status of the Ohio criminal charges, with Phillips suggesting that he file a claim with the police bureau. But the three
emails showed that applicant had threatened legal action
against the city and any officers involved; vaguely alleged
reckless and dishonest police conduct; and ultimately threatened to sue Phillips. In the fourth email, which applicant
had sent to Phillips in late January 2020 after his panel
interview, applicant made vague and incoherent references
to negligence and criminality.
42 In re Kauffman
In May 2020, the board notified applicant that it
had determined that he neither had met the essential eligibility requirements for admission, RFA 1.20 - 1.45, nor had
established that he had the good moral character required
by ORS 9.220(2)(a). See RFA 6.05(5) (setting out notice
requirement for adverse recommendation). The board also
told applicant that he could request an evidentiary hearing, RFA 9.01, and that, if he did not do so, the board would
recommend denial. See generally RFA 9.35 - 9.45 (describing
character and fitness review proceeding). Applicant did not
request a hearing; instead, after the board filed its adverse
recommendation in this court, applicant sought to oppose
it. We then directed the board to file the record on which it
had based its recommendation; applicant to file a petition
under RFA 9.60(1); and both parties to file briefs, for resolution of the matter without oral argument. See generally
In re Zielinski, 341 Or 559, 564-65,
146 P3d 323 (2006) (similar procedure, involving applicant petition filed in this court
following adverse board recommendation and no evidentiary hearing below).
II. PRELIMINARY MATTERS
We first address two preliminary matters that
applicant has raised.
A. Board’s Reliance on Phillips’s March 2020 Letter
Applicant first challenges the board’s reliance on
Phillips’s March 2020 letter, sent to the board, because
he did not know about that letter until the board filed its
adverse recommendation in this court—which expressly
referred to the letter and attached it.3 He contends that
the board improperly considered that letter in making its
adverse recommendation, when it did not provide him with
3
The board had not expressly referred to Phillips’s letter in its May 2020
notice sent to applicant.
Applicant challenges only the content of Phillips’s letter to the board—not
the four emails from applicant that Phillips had attached. As noted earlier, Wood
repeatedly had asked applicant for the first three emails (from October 2019),
and applicant had purported to summarize his conversations with Phillips in
that time period during his panel interview. The fourth email was sent by applicant after his interview—as were many other emails that the board provided as
part of its record, to which applicant does not object.
Cite as 369 Or 31 (2021) 43
a copy or an opportunity to respond. In his view, that course
of events implicates procedural due process protections.
This case reaches us in an unusual posture, in that
applicant did not request a character and fitness hearing,
which would have “afford[ed] both parties an opportunity
to engage in discovery, to disclose to the other parties documents on which a party intends to rely, and to offer and
object to evidence, and otherwise provide[d] an orderly
means of making a reliable record.” Zielinski, 341 Or at 566;
see also
id. (on adverse recommendation and applicant petition with no hearing below, court considered all documents
that parties submitted without objection; court did not consider one document to which the applicant had objected,
for reasons not applicable here); RFA 9.35 - 9.45 (describing
hearing procedure). We conclude that it is unnecessary to
further consider Phillips’s March 2020 letter or any arguments related to it because, as explained below, even without
that letter, the record amply supports the board’s adverse
recommendation.
B. Board’s Purported Disparate Treatment of Applicant
Applicant also asserts that, in aspects of its character and fitness investigation, the board treated him differently from other similarly situated applicants without any rational basis, in violation of his equal protection
rights.4 He asks that we “correct” those procedural errors,
to ensure equal treatment. The Bar responds that applicant
was treated fairly; the board acted rationally and consistently with the rules; and admissions staff and the board
ensured that applicant had received multiple opportunities
to provide accurate information in response to the board’s
concerns.
Based on the limited information that applicant
provides, we reject his equal protection argument. Applicant
4
Applicant cites four instances of disparate treatment, after having consulted with one other unidentified applicant who had a small panel interview. He
contends that, unlike that other applicant, (1) his own panel had four members
(the other had three); (2) he was not given advance notice about who would be on
his panel; (3) he was required to obtain a court order to secure certain documents
from admissions staff; and (4) prior to his interview, admissions staff had shared
with the panel one or more of his emails expressing his frustration with staff,
casting him in a negative light.
44 In re Kauffman
purports to base that argument on different treatment
afforded to another applicant, but he offers no supporting
evidence—in the form of any affidavit or declaration or
otherwise—of such treatment. We therefore have no basis
for assessing his contention. See generally In re Gatti, 330
Or 517, 534-35,
8 P3d 966 (2000) (rejecting equal protection
claim for lack of supporting evidence).
III. ADMISSION ANALYSIS
A. Legal Standards
Our task on de novo review is to determine whether
applicant should be admitted to the practice of law, denied
admission, or conditionally admitted. RFA 9.60(5). Several
legal standards govern that determination. Most notably,
under ORS 9.220(2)(a), an applicant must show that the
applicant “[i]s a person of good moral character and fit to
practice law”; conversely, under ORS 9.220(2)(b), a “lack of
‘good moral character’ may be established by reference to
acts or conduct … which would cause a reasonable person to have substantial doubts about the individual’s honesty, fairness[,] and respect for the rights of others,” and
for state and federal law. Additionally, various Rules for
Admission set out requisite standards, essential eligibility
requirements, and potentially disqualifying conduct that
justifies further inquiry into character and fitness. See RFA
1.20 (attorney should have record of conduct demonstrating
“a level of judgment” and diligence that will result in adequate client representation, “and that justifies the trust of
clients, adversaries, courts, and the general public”); RFA
1.25 (listing essential eligibility requirements, including
the ability to “[c]ommunicate honestly, candidly, and civilly
with clients, attorneys, courts, and others”; to [d]emonstrate regard for the rights … and welfare of others; and
to comply with requirements of applicable law and the Rules
of Professional Conduct); RFA 1.30 (listing potentially disqualifying conduct, including “[m]aking or procuring any
false … statement or omission of relevant information in
connection with any bar application”; acts involving misrepresentation; and acts “demonstrat[ing] disregard for the
rights or welfare of others”). Finally, applicants for admission have certain obligations, including a duty to cooperate
Cite as 369 Or 31 (2021) 45
and comply with board requests, and a continuing duty
to promptly report any change, addition, or correction to
application information, including facts “that could reasonably bear upon the character and fitness of the applicant.”
RFA 4.25.
Applicant bears the burden of demonstrating good
moral character by clear and convincing evidence. See
Zielinski, 341 Or at 561 (describing the applicant’s burden
by quoting and applying the clear and convincing evidence
standard set out in an evidentiary hearing provision, RFA
9.45(6), when reviewing an adverse recommendation with
no hearing below). “Stated differently, applicant must show
that it is ‘highly probable’ that [he] has the good moral character and fitness to practice law.” Halttunen,
367 Or at 361
(internal citation omitted). Any substantial doubt about an
applicant’s character must be resolved in favor of protecting
the public.
Id. at 377.
B. Analysis
After reviewing the record de novo, and as explained
further below, we conclude that applicant’s omissions from
his 2019 application and his conduct throughout the board’s
investigation support the board’s recommendation to deny
admission.5
5
In addition to the conduct just summarized, the Bar focuses on applicant’s
general criminal history and, as to the Ohio matters, his conduct toward the Ohio
employer and the resulting criminal charges. The Bar adds that applicant has
not sufficiently shown rehabilitation under RFA 1.40. Applicant counters that
his conduct relating to the Ohio employer amounted to unproven facts; that none
of his arrests or criminal matters related to deceit or moral turpitude; and that
none bore any rational connection to the practice of law, as required under ORS
9.220(2)(b).
Because we conclude that applicant’s conduct in omitting certain information
from his 2019 application, coupled with his conduct throughout the board’s investigation, supports the board’s adverse recommendation, we need not address the
parties’ contentions about his criminal history or his conduct toward the Ohio
employer, or whether he has shown sufficient rehabilitation since those events.
See generally In re Bernath, 327 Or 422, 426,
962 P2d 685 (1998) (declining to
consider each specific allegation proffered by the board, because the applicant’s
failure to disclose material information on his application and making false representations to the board—each standing alone—were sufficient grounds to deny
admission, such that discussion of other allegations would not benefit the bench
or bar). We limit our consideration of those additional matters to the context that
they provide in understanding the problematic conduct that we have identified.
46 In re Kauffman
1. Omissions from applicant’s 2019 application
We begin with applicant’s omissions from his 2019
application, most notably pertaining to the Ohio employer
and related matters.6 As part of submitting a Bar application, an applicant is required to attest that the admission
determination depends on the truth and completeness of the
answers provided in the application, together with information furnished with the application. And, as already noted,
conduct that may disqualify an applicant from admission
includes omitting relevant information in connection with a
Bar application. RFA 1.30(c).
As to the Ohio matters, applicant included on his
2019 application only a cryptic narrative comment that he
was in a dispute with an unidentified “former employer”
and had not yet sued but was “gathering evidence,” with
tense exchanges “including requiring me to file reports.”
(Emphasis added.) He did not identify the Ohio employer
on either the discharge or employer questions, and he did
not include the Ohio charges—of which he acknowledged
he had been at least generally aware at the time of his
application—on the criminal matters question. As the panel
members pointedly observed, his application appeared
designed to conceal unfavorable information about his
employment with the Ohio employer in 2016 and 2017, his
discharge in 2017, and the ensuing criminal charges and
civil restraining order in 2018. That misleading approach
was punctuated by applicant’s listing of an earlier employer
for whom he had performed no work since 2015, as well as his
comment that he had been required to file reports against
an unidentified former employer, while misleadingly not
also mentioning that the employer had been required to file
“reports” against him, in the form of a restraining order and
a criminal complaint.
At his panel interview, applicant offered varying
justifications for omitting information related to the Ohio
employer. He allowed, at one point, that the omissions may
6
As recounted earlier, applicant also omitted information about (1) another
recent employment; (2) yet another employer who had recently discharged him—
later disclosed in his panel interview; and (3) additional criminal history—some
disclosed in his interview, and some discovered by admissions staff.
Cite as 369 Or 31 (2021) 47
have been due to his concern about the ongoing complicated
issues; at another point, he offered that he had listed only
those employers (on the employer question) with whom he
had good working relationships, although he did also list
one other employer (on the discharge question) who had discharged him. He also stated that he had no specific explanation for omitting the information, which “definitely” should
have been included at least on the discharge question, but
that he had acted with no deceptive intent.
The Bar contends that applicant’s stated justifications were neither logical nor credible, and we agree.
Applicant clearly deliberated about whether to include any
reference to the Ohio employer on his 2019 application,
because he ultimately decided to include the vague reference
to an unidentified former employer. He also clearly deliberated about which information to include when answering
the three questions at issue, because he decided to include
an employer for whom he had not performed any work since
2015, as well as a different employer who had discharged
him about seven months after the Ohio employer had discharged him. Thus, applicant affirmatively acted in a manner designed to deter the board from considering information that may have raised concerns about his character.
In short, applicant’s omissions from his 2019 application justified further inquiry, RFA 1.30(c), and his incomplete and inconsistent responses during the board’s ensuing investigation, as discussed further below, continued to
demonstrate a lack of good character. As this court wrote in
In re Bernath, 327 Or 422, 427,
962 P2d 685 (1998):
“It is essential that every applicant to practice law in
Oregon fully disclose to the Board all information relevant
to the applicant’s character and fitness. Failure to disclose
relevant information fully and candidly is a ground for the
Board to recommend denial of admission. RFA 6.05(3). It
also forms a basis for this court to deny admission. …
Applicant was on notice of his obligation to disclose relevant information to the Board, both through the Rules for
Admission of Attorneys and through the application itself,
on which applicant acknowledged, by signature and under
oath, his duty to disclose. Applicant’s [limited] disclosure
fell short of the degree of disclosure that he acknowledged
48 In re Kauffman
to be required of him. Because it raises significant doubts
about his good moral character, applicant’s failure to disclose his suspension … constitutes a sufficient ground for
denial of his application to practice law in Oregon.”
(Internal citations omitted.)
2. Lack of candor and cooperation during board’s
investigation
An applicant for admission must “cooperate and
comply” with board requests, and “report promptly …
any change, addition[,] or correction to the information
provided in [the] application,” including “any other facts
or occurrences that could reasonably bear upon the character and fitness of the applicant.” RFA 4.25; see also RFA
1.35(g) (stating that, in considering prior conduct, candor
in admissions process is a potentially mitigating or aggravating factor regarding present good moral character). The
Bar argues that applicant demonstrated a persistent lack of
candor, notwithstanding multiple opportunities to disclose
all relevant facts. And, the Bar continues, when confronted
with his deceptive tactics during his panel interview, applicant provided “nonsensical and unbelievable explanations
as to how he purportedly reached his conclusion that the
omissions or misstatements were actually truthful.” For
his part, applicant reiterates that he did disclose, in his
October 2019 addendum, the “crucial information” about the
Ohio employer, including contextual information about the
employment, a link to employer information, and his efforts
to report purported misconduct by others and to resolve the
criminal charges.
We agree with the Bar that applicant failed in his
obligation to cooperate and comply with the board in its
investigation, and that—throughout his interactions with
admissions staff and the board—applicant displayed a lack
of candor. Although the Bar relates many examples, the following are most illustrative.
First, as a general matter, when Hansen and Wood
repeatedly requested specific information and documents
from applicant in October 2019, he responded by providing
only a minimal amount of the requested information and
Cite as 369 Or 31 (2021) 49
otherwise challenged their authority to make the requests.7
The panel similarly requested certain information at the
close of the interview in December, but applicant again provided only minimally responsive information and otherwise
insisted that he had fully cooperated, when in fact he had
not. Indeed, before this court, applicant continues to insist
that he cooperated with the investigation, but the record
shows that what cooperation he did offer was only partial in
nature and, to a notable extent, self-serving.
Second, applicant demonstrated a lack of candor
when providing answers about his omissions during his
panel interview. Although he responded to each question,
many answers were incomplete, inconsistent, or contradictory. For example, when asked why he had omitted the Ohio
employer from the discharge and employer questions, applicant varyingly stated that he was not sure why or had no
explanation; that he had not been sure how much detail to
include in light of the complex issues that had arisen; and
that he had listed only those employers with whom he had
had positive relationships.
Third, applicant displayed a pronounced lack of
candor in his panel interview when discussing his October
2019 communications with Phillips about the Ohio criminal charges. Applicant told the panel that Phillips had told
him that the case was closed, but also that, if desired, he
could file a claim with the police bureau—suggesting that
Phillips had offered some form of resolution by referring to
a claim process. Notably, though, notwithstanding repeated
requests from admissions staff, applicant never provided
the board with his written communications with Phillips.
And, when Phillips himself later did so, the communications showed that applicant repeatedly had threatened
legal action against Ohio law enforcement and even against
Phillips himself.
For his part, applicant emphasizes his perspective
that, in his interactions with the Ohio employer, he broke no
laws and was merely standing up for himself; in doing so, he
7
Indeed, applicant did not even affirmatively identify the Ohio employer
until after Wood repeated at least two earlier requests that he do so.
50 In re Kauffman
distinguishes cases involving applicants who had engaged
in criminal conduct prior to admission. See, e.g., In re Taylor,
293 Or 285, 290,
647 P2d 462 (1982) (earlier crime of theft;
applicant had stated in an underlying proceeding that he
had forgotten to pay for a stolen item, but then stated during
admissions process that he had intended to steal the item).
But applicant misses the point of Taylor and other cases.
The key question is not whether applicant engaged in illegal
or other problematic conduct at the time of the Ohio matters; instead, the question is whether he responded to the
board’s investigation with cooperation and candor. That was
precisely this court’s point in Taylor. See
id. at 296 (perceiving lack of candor in the applicant’s explanations of his earlier conduct and related proceedings, and emphasizing his
“inconsistent, equivocal, and evasive” responses); see also
In re Fine,
303 Or 314, 330,
736 P2d 183 (1987) (“[Applicant]
… continues to misstate the facts of [an earlier] crime and
his involvement in it … to gain admission to the bar. …
[He] has not shown himself to be a credible person.”).
In sum, the record shows that applicant did not fully
cooperate or comply with the board’s requests, as required
by RFA 4.25. See also RFA 1.30(c) (when assessing character and fitness, misleading statements or omission of relevant information in connection with a Bar application may
be treated as cause for further inquiry); Bernath, 327 Or
at 428-29 (during character and fitness investigation, applicant provided “no convincing explanation[ ]” for earlier misrepresentations, which in turn did “nothing to resolve [the
court’s] significant doubts regarding [his] moral character”).
3. Nature of applicant’s communications with admissions staff and others
Essential eligibility requirements for admission
include the ability to “[c]ommunicate honestly, candidly, and
civilly” with clients, attorneys, court, and others; and the
ability to “[c]onduct oneself with respect for and in accordance with the law[.]” RFA 1.25(c)(i), (iii). Here, the record
shows that admissions staff sent several clear and courteous requests to applicant, seeking supplemental information related to his 2019 application and his cryptic comment about an unidentified former employer, and that he
Cite as 369 Or 31 (2021) 51
responded with a pattern of accusatory, vitriolic, and hostile
communications. Notably, applicant told the panel that he
had come to realize that some of his communications had
been aggressive and inappropriate, and that he was learning how to engage more deliberately. Nonetheless, he continued sending uncivil and accusatory emails—including to
staff at the Bar and to Phillips—after acknowledging his
need for improvement and reporting that he had made personal strides in that area.
In his briefing in this court, applicant claims that
admissions staff “exaggerated” his behaviors and that, to
the contrary, he conducted himself in a calm and patient
manner, and provided requested information. We agree that
applicant acted in a calm manner during his panel interview,
and nothing in the record suggests that he acted uncivilly
when communicating with others by phone. As extensively
discussed, however, a significant amount of applicant’s
ongoing email communications—sent both before and after
his interview to admissions staff, others at the Bar, and
Phillips—were accusatory, hostile, and uncivil, contrary to
RFA 1.25(c)(i) and (iii).
4. Applicant’s other arguments
Applicant raises three other arguments. First, he
contends that his conduct and statements were protected
under the First Amendment to the United States Constitution
because he was standing up to bigotry. Applicant does not
elaborate on that constitutional claim, however, and nothing
in the record suggests that any action taken by board or
admissions staff bore any connection to applicant’s sexual
orientation.8
Second, applicant emphasizes that he made an
additional disclosure of certain criminal matters to admissions staff, including incidents that the board had not
known about otherwise, which went “above and beyond” and
shows his “strong belief in honesty and full disclosure.” But
the overarching purpose of the admissions process is for
8
To the extent that applicant contends that it is improper to rely on his conduct during the Ohio matters because his First Amendment rights were somehow
violated in Ohio, we reiterate that the underlying Ohio matters do not bear on our
ultimate conclusion to deny applicant’s admission.
52 In re Kauffman
an applicant to provide complete and truthful information
bearing on character and fitness that the board would not
otherwise have. Applicant’s belated voluntary disclosure of
a particular criminal matter does not weigh in his favor.
Finally, applicant emphasizes the positive references that he provided to the board from all aspects of his
life—including in employment, volunteerism, academics,
sports participation, and housing. He argues that those
references collectively establish a strong probability of his
good moral character, notwithstanding mistakes during the
admissions process. And he emphasizes his own motivation
and passion to provide service to marginalized persons,
arguing that denial of his application would amount to a
“grave injustice.”
We have no reason to doubt either the positive references that applicant provided or his sincerity in seeking
to be an advocate for marginalized persons. The problem,
however, is that his conduct in omitting certain information
from his application for admission, his lack of candor and
cooperation during the board’s investigation, and his ongoing hostile treatment of admissions staff and others all significantly detract from his effort to prove that he possesses
the good character required to practice.
IV. CONCLUSION
We reiterate that, in deciding whether to admit an
applicant to the practice of law, our primary responsibility
is to the public, to ensure that those who are admitted have
the requisite sense of “ethical responsibility” and “maturity
of character.” Bernath, 327 Or at 429; see also Taylor,
293 Or
at 296 (to same effect). As summarized in Taylor,
293 Or at
288, “[w]e cannot overstate the necessity that one who seeks
admission to the Bar be of good moral character.”
On de novo review of the record and materials that
the parties have provided, we conclude that applicant has not
established by clear and convincing evidence that he has the
requisite good character to practice law, as required by ORS
9.220(2)(a). See also Taylor, 293 Or at 296 (“Reviewing the
record, we are left with the impression that [the] applicant
fails to appreciate the gravity of his conduct as it pertains
Cite as
369 Or 31 (2021) 53
to his moral character [and] that [he] did not fully accept
responsibility for his actions.”). We therefore agree with the
board’s adverse recommendation and deny his application.
The application for admission to the practice of law
is denied.
