One of the legal profession’s ethics anomalies is that its character standards for entering legal practice are far more unforgiving than the standards for keeping one’s license to practice after being admitted. For while John Edwards continues to be a North Carolina lawyer in “good standing,” an Ohio bar applicant was held to lack the requisite good character to be a trustworthy lawyer (Ohio Supreme Court opinion here) because of the following set of facts.
When Jasmine Shawn Parker of Covington, Kentucky was taking the Ohio bar exam, a test monitor reported that she had continued to write for up to 30 seconds after “time” was called on a set of two exam questions, and then again for 45 to 60 seconds on two sets of two exam questions. The Board of Bar Examiners investigated, and asked Parker’s tablemates about their observations or her actions, if any, after time had been called. They reported that Parker had continued writing for maybe a second or two past the declared deadline on Day 1 of the exam, and on the second day, had continued to write past the stopping point “long enough to get at least two lines of writing on paper.” As a penalty after these findings, the Ohio Board of Bar Examiners gave Parker no credit on the exam question with the highest point value. Never mind: Parker’s score was high enough to pass the bar exam anyway. Her alleged cheating, however, led the Board of Commissioners on Character and Fitness to recommend her license be denied, with the opportunity to reapply.
When told about the cheating claim (for that’s what it is) Parker “adamantly denied” that she had continued writing. She characterized the accusations as “malicious,” “unfounded,” “vague,” and “empty and false,” and attacked the integrity and motives of those who had reported her conduct. At the bar examiners hearing, she swore under oath on direct examination that she did not exceed time limits. Under cross-examination, however, Parker conceded that it was “a possibility.” Later, before the Board of Commissioners on Character and Fitness, Parker changed her story again, saying she “had no memory” of writing after the deadline. She said that she regretted her vociferous response to the accusations, and that it was the unfortunate result of haste and immaturity.
And well she might have regretted it, since her initial denials and her attacks on those who reported her misconduct disturbed the court as least as much as her shady exam-taking tactics. The Ohio Supreme Court, in a January 29 ruling, denied a law license to Parker, but said she could reapply in 2013 in light of her “sincere remorse and her maturation as a result of this experience.”
I love this decision.
Parker cheated. Whether it was few seconds or a few minutes, she knew the rules and tried to benefit by breaking them. That shows an integrity deficit, and ethically-challenged lawyers tend to get more unethical as they get more experienced, realizing what they can and can’t get away with, growing cynical, and seeing the rewards of careful rule-stretching and breaking. If Parker tries this kind of thing now, she is a real risk to the profession over the long term. Her response to the accusations compounded the problem. It placed her honesty legitimately in question, as well as her trustworthiness. It was in her interest and the public’s interest, as well as the Ohio legal community’s, for Parker to be taught a sharp lesson now, while she has time to recalibrate her ethics alarms. The compassionate limit on the punishment was also fair and appropriate.
I also love this decision because it supports my objections to one of the favorite arguments of the defenders of baseball’s prime steroid cheat, Barry Bonds. They argue that since he would have undoubtedly qualified for baseball’s Hall of Fame based on his achievements before he began using performance enhancing drugs, his cheating shouldn’t matter. There are two reason cheating disqualifies someone, however. One is that it unjustly inflates their achievements, but the other, equally important (I would argue more important) is that no professions can or should tolerate cheaters in their ranks. If Parker cheated, it doesn’t matter that she didn’t need to. What matters is the cheating itself.
As with Bonds, Parker now has her defenders, who feel that Ohio is being too strict. The Court went “overboard,” writes Vivia Chen in “Consumerist,’ for example. In fact, it was those mean test-takers whose conduct was really deplorable, since they “ratted on her.” That’s right: Chen, a former corporate lawyer (remember what I just said about cynical?), believes that when the Bar Examiners ask an applicant a direct question about the conduct of another applicant, the correct conduct is to cover up for her. Nice. What great advice for a blog devoted to legal job-seeking! Next she opines, incredibly:
“I do think it was uncool for Parker to claim that she didn’t run overtime. That said, running over by 60 seconds or so doesn’t seem like the biggest sin in the world. I bet it happens quite frequently on these type of exams—but it probably doesn’t get reported or caught.“
Goody! Let’s play “Count the Ethics Whoppers”!
ONE! Lying is “uncool”? No, according to the ethics rules governing lawyers, lying is grounds for professional discipline, and lying under oath is professional suicide—unless you’re President of the United States, but I digress…
TWO! “Running over by 60 seconds or so doesn’t seem like the biggest sin in the world”—Yikes! The Comparative Virtue Excuse, the worst rationalization of all! “It’s not the worst thing!” No, and she didn’t commit treason or boil a pet rabbit, either. She cheated. How much she cheated is irrelevant.
THREE! “I bet it happens quite frequently on these type of exams..” The Golden Rationalization…everybody does it! Vivia is on a roll…a legal ethics malpractice roll!
FOUR! “It probably doesn’t get reported or caught.” This is #25 on the Ethics Alarms Rationalization List, The Favorite Child Excuse. “HE got away with it, so it’s OK for me to do it too!”
And it is thinking like Chen’s, my friends, that is why John Edwards still has his law license.
Ohio got it right.
Facts: ABA Journal
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at email@example.com.