In re Bagne

102 Ohio St. 3d 182
CourtOhio Supreme Court
DecidedMay 12, 2004
DocketNo. 2003-1228
StatusPublished
Cited by9 cases

This text of 102 Ohio St. 3d 182 (In re Bagne) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bagne, 102 Ohio St. 3d 182 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} Applicant, Alexander A. Bagne of Shaker Heights, Ohio, applied on January 15, 2002, to register as a candidate for admission to the practice of law in Ohio. On April 17, 2002, applicant applied to take the Ohio bar examination to be administered in July 2002. On July 9, 2002, the Joint Admissions Committee of the Cleveland and Cuyahoga County Bar Associations recommended that applicant’s character, fitness, and moral qualifications be approved for the purpose of his admission to the Ohio bar.

{¶ 2} On July 22, 2002, the Board of Commissioners on Character and Fitness invoked its authority under Gov.Bar R. I(10)(B)(2)(e) to further investigate the character, fitness, and moral qualifications of the applicant, appointing a panel to consider the cause. After a hearing conducted on November 7, 2002, the panel reported its findings to the board. The panel recommended, based on the applicant’s character and fitness, disapproval of his application to take the July 2002 bar examination but that he be permitted to reapply for the February 2004 bar examination.

{¶ 3} Applicant earned an accounting degree from Ohio State University in 1994, graduated in 1996 with an MBA from the University of Minnesota, received his law degree from Tulane University in 1999, and is a certified public accountant. In 1999, applicant took the Michigan bar examination but was denied admission to the Michigan bar without release of the examination results because he did not consistently account in character and fitness proceedings for a crime he committed in 1991. Applicant is not permitted to reapply for admission to the Michigan bar until 2006.

[183]*183{¶ 4} In 1991, when he was 19 years old, applicant was accused of shooting a jogger in the neck with a BB gun. The crime occurred while applicant and a friend were joyriding in an area that applicant thought was fairly remote, and applicant was shooting the BB gun randomly from the passenger side of the car. Applicant insisted before the panel that the shooting was accidental. He claimed that he had not actually seen the jogger because it was dusk, he was traveling on a two-lane road, and the jogger, although running on the passenger side of the car, might have been just cresting an embankment. Applicant guessed that one of his shots must have struck the jogger.

{¶ 5} Applicant related to the panel that when he and his friend were apprehended on the night of the shooting, applicant gave police a false description of the jogger, describing the jogger as a man wearing grey, when the jogger was actually a woman wearing brightly colored clothing. Applicant explained that he had lied to police because he was afraid and thought that he might be released if he cooperated in some way.

{¶ 6} While the charges were pending, applicant completed his studies at Ohio State University. Applicant then pled guilty to aggravated assault, a misdemean- or, and was sentenced to 12 months, all suspended, with one year of probation.1 During his probation, with permission from the court, he went to graduate school in Minnesota. Applicant completed his probation and was discharged in 1995. His criminal record since then has included only traffic violations — approximately 12 parking tickets and 5 speeding tickets.

{¶ 7} The panel inquired into the reasons why the Michigan Board of Law Examiners had found applicant’s credibility and candor suspect. Applicant participated in three separate character and fitness hearings in Michigan and unsuccessfully petitioned the Michigan Supreme Court for review. According to the evidence, applicant was criticized in reports from these hearings for appearing to be willing to say anything for the sake of approval and for attempting to create false impressions as to the seriousness of and his responsibility for his crime. Particularly troubling to the panel was a change in applicant’s testimony during the third hearing in Michigan, when he proposed for the first time that the driver of the car, who had died before the hearing, might actually have fired the shot that struck the jogger.

{¶ 8} In addition to his own testimony, applicant provided the telephonic testimony of Michael Hohauser, a seasoned Michigan attorney who then served as a Commissioner of the State Bar of Michigan and had formerly served for [184]*184many years in the Representative Assembly of that state’s bar, among other capacities. Hohauser had known applicant for two years, during which he had employed applicant as a clerk. Hohauser testified, as he did on applicant’s behalf during the admission proceedings in Michigan, that he was confident in applicant’s integrity and applicant’s genuine efforts to be forthcoming during that process. Hohauser emphasized that applicant’s crime occurred long ago and that applicant had since distinguished himself in his studies and work as a willing and capable performer.

{¶ 9} Hohauser also testified that he had reviewed applicant’s Michigan admission materials and police reports of applicant’s 1991 crime. In response to the panel’s inquiry on the issue, he said that he had seen no inconsistencies. Hohauser then explained:

{¶ 10} “You know * * * in these police reports there’s a question about whether * * * the boys were riding about shooting in the dark and aimed for the jogger or didn’t aim for the jogger, and I don’t know the answer to that question. My impression from Alex was that he darn well knew he was shooting in the direction of the jogger, and I didn’t find anything dissembling or problematic about that [as far as applicant’s candor in his admission materials].”

{¶ 11} At that point, a panel member inquired further of Hohauser’s impression. This exchange ensued:

{¶ 12} “Mr. McBride: Is it your impression from talking to Alex that at the time that he was shooting, he knew that he was shooting in the direction of the jogger?

{¶ 13} “Mr. Hohauser: It seems to me, and I wish I had notes or something in front of me, but it seems to me that he knew he was shooting in the dark and he knew there was a jogger in that area, and my memory is that he knew he was shooting in the area of the jogger.

{¶ 14} “Mr. Bagne: Actually, I didn’t know.

{¶ 15} “Mr. Hohauser: I’m sorry, I couldn’t hear you.

{¶ 16} “Mr. Bagne: I said actually I didn’t know that there was a jogger there.

{¶ 17} “Mr. Hohauser: I’m not going to — I’m only going to testify truthfully from my sitting here today.”

{¶ 18} Upon review, the board concluded that applicant seemed unwilling to consistently tell the truth or genuinely accept the consequences for his acts, however many years ago those acts occurred. The board was struck by applicant’s need to correct even his own witness as to the degree of applicant’s responsibility for shooting the jogger in 1991. Moreover, applicant had blamed his attorney for advising him to suggest during the third Michigan character and fitness hearing that he might not have been completely responsible for the [185]*185jogger’s injury. The board was skeptical that the same lawyer who had represented applicant in the second hearing would have advised him to change testimony in preparation for a third. The board found that applicant had a fairly cavalier absence of remorse for his victim, whom he had never met, implying on one occasion that the jogger’s injuries were insignificant because after the shooting, she had been able to jog back to her house before going to the hospital.

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Cite This Page — Counsel Stack

Bluebook (online)
102 Ohio St. 3d 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bagne-ohio-2004.