[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Baudendistel, Slip Opinion No. 2014-Ohio-5200.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-5200
IN RE APPLICATION OF BAUDENDISTEL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Baudendistel,
Slip Opinion No. 2014-Ohio-5200.]
Attorneys—Character and fitness—Lack of candor during admissions process—
Pending application to take the bar exam disapproved—Applicant may
apply to take the July 2015 or later bar exam.
(No. 2014-0424—Submitted May 28, 2014—Decided November 26, 2014.)
ON REPORT by the Board of Commissioners on Character and
Fitness of the Supreme Court, No. 562.
___________________________
Per Curiam.
{¶ 1} Thomas Donald Baudendistel of Cincinnati, Ohio, has applied to
register as a candidate for admission to the practice of law in Ohio. In his
application, he reported a March 2010 Kenton County District Court, Kentucky,
conviction for reckless operation, which had been reduced from a charge of
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driving under the influence of alcohol (“DUI”), and a September 2010 Franklin
County Municipal Court conviction for possession of an open container of beer.
{¶ 2} A two-person panel of the Cincinnati Bar Association admissions
committee interviewed Baudendistel on June 5, 2012, and issued a provisional
report indicating that he possessed the requisite character, fitness, and moral
qualifications for admissions to the practice of law, making no mention of his
convictions. Therefore, the admissions committee provisionally approved his
registration application. And after Baudendistel applied to take the July 2013 bar
exam, the admissions committee recommended final approval of his application
on May 16, 2013. It therefore appeared that he would sit for the July 2013 bar
exam.
{¶ 3} But on June 19th, Baudendistel sent an e-mail update of his
application to the Board of Commissioners on Character and Fitness to report that
he had been charged with failure to control a motor vehicle and leaving the scene
of an accident after crashing his vehicle into a parked car at 3:30 a.m. on June 6th.
{¶ 4} Baudendistel was not permitted to take the July 2013 bar
examination, and on August 14, the board, sua sponte, commenced an
investigation pursuant to Gov.Bar R. I(10)(B)(2)(e). Having completed that
investigation and expressed concerns about Baudendistel’s truthfulness, the board
now recommends that we disapprove his pending application but permit him to
apply for the February 2015 bar examination. We adopt the board’s
recommendation that Baudendistel be permitted to reapply, but rather than
permitting him to apply for the February 2015 bar exam, we will permit him to
apply for the July 2015 bar exam.
Criminal Charges Linked to Alcohol
{¶ 5} At the hearing on this matter, Baudendistel testified about the three
instances that led to his being charged with criminal conduct.
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{¶ 6} The first incident was an automobile accident in December 2009.
Baudendistel testified that he had been driving to pick up a friend who could not
drive because he had been drinking. He crashed into another vehicle, causing
property damage to both vehicles, but no injuries, and was charged with DUI.
Baudendistel eventually entered a guilty plea to a lesser charge of reckless
operation, was ordered to pay a modest fine of $274, and his parents did not
permit him to drive for six months. He admitted that he probably should have
been convicted of the DUI offense and acknowledged that he was fortunate that
he did not hurt anyone or receive a harsher punishment. Baudendistel candidly
admitted that he had previously driven after drinking alcohol, but claimed that this
incident was the last time that he had driven while impaired.
{¶ 7} Baudendistel’s second offense was a citation for having an open
container of beer on the sidewalk in front of his brother’s residence in August or
September 2010. He testified that he had rented a bus to drive himself, his
brother, and their friends to their destination for his brother’s bachelor party but
that as the group got off the bus and walked on the sidewalk, they were stopped
and cited by an undercover police officer for their open containers. He described
the episode as a combination of bad luck and bad decision-making.
{¶ 8} The third and final event occurred in June 2013, just weeks before
Baudendistel was scheduled to take the July 2013 bar examination. He testified
that he and several friends from law school met for dinner at the home of a friend
of a friend to celebrate their graduation. From 6:30 p.m. until about 9:00 p.m.,
five of them drank a 12-pack of beer. He admitted that he had drunk two or three
beers and explained that he had not been getting much sleep at the time, as he was
working two jobs and studying for the bar exam. Consequently, he fell asleep at
the house sometime around midnight.
{¶ 9} Baudendistel testified that he awoke sometime between 3:00 a.m.
and 3:15 a.m. and left in the pouring rain to drive approximately one-half mile to
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his home. He swerved to avoid an oncoming car and struck another vehicle
parked on the street. He stopped about 100 feet down the road to make sure that
he had not hit a person or caused serious damage. He stated that he had turned at
the next intersection with the intent to return and inspect the damage to the other
car, but discovered that his car was too damaged to drive any further.
{¶ 10} In hindsight, Baudendistel acknowledged that he should have
called the police or at least called someone to bring him a pen and paper so that he
could leave a note on the damaged vehicle, but he could not explain why neither
of those things occurred to him at the time of the accident. In response to
questioning from the panel, however, he acknowledged that he had thought about
calling the police, but said, “I knew if I left a note, I wouldn’t have [to report] it to
the police. And, again, ironically and stupidly I didn’t want to present any issues
with the Board of Character and Fitness so I was going to take care of it through
the insurance with that owner of the car.”
{¶ 11} With his car immobilized and without the means to leave a written
message, Baudendistel walked about a quarter of a mile home with, he testified,
the intention of writing a note and returning to the crash site to leave it on the
damaged vehicle. When he arrived at home, he plugged in his telephone, dried
off, sat down to compose a note, and promptly fell asleep. He answered
affirmatively when asked if he had sat down at his desk, but later testified that he
had not been at his desk but in a moon-shaped chair in his room.
{¶ 12} Baudendistel testified that he awoke hours later in a panic and
called his friend, who practices law in Kentucky, at approximately 8:00 or 8:30
a.m. to ask him what to do. On his friend’s advice, he called the police to report
the crash around 9:00 or 10:00 a.m. and learned that someone else had reported it
earlier that morning. Baudendistel explained what had happened, provided his
insurance information to the police, and offered to take a blood test. Despite his
calling the police several times over the next few days, they did not follow up
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January Term, 2014
with him until June 11th, when they asked him to come in and provide a
statement. Baudendistel immediately went to the police department. After he
gave his statement, the officer served him with citations for failure to control his
vehicle and leaving the scene of an accident.
{¶ 13} On the advice of his counsel, Baudendistel entered a plea of not
guilty, but at his character-and-fitness hearing, he admitted that he had committed
the charged offenses. He testified that the charges had been dismissed because
the prosecuting witness did not appear for a pretrial hearing.
{¶ 14} Because each of Baudendistel’s run-ins with the law appears to
have involved the use of alcohol, the hearing panel inquired about his history of
alcohol use. He testified that he drank alcohol once during his sophomore year in
high school but did not drink again until his senior year. In college, he drank once
a week—usually on the weekend. Although he admitted that he occasionally
drank to excess in college, he claimed that due to his workload in law school, he
drank only once or twice a month, and to excess once every four months. At his
hearing, he reported that he no longer drank to get drunk but occasionally has a
beer or two. He noted that drinking was no longer the “feature of the event,” as it
had been in college, but was more incidental to other events in his life.
{¶ 15} Approximately one month after his panel hearing, Baudendistel
submitted to a chemical-dependency and mental-health assessment performed by
Stephanie Krznarich, a licensed chemical-dependency counselor and the clinical
director of Ohio Lawyers Assistance Program, Inc. (“OLAP”). In a letter to the
panel chairperson and the Office of Bar Admissions, Krznarich stated that
Baudendistel had abused alcohol in the past, but that he appeared to understand
the dynamics of his binge drinking and to have developed a more mature pattern
of alcohol use. She found no chemical-dependency issues that would require him
to enter into an OLAP contract at that time.
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Disposition
{¶ 16} An applicant to the Ohio bar must prove by clear and convincing
evidence that he or she “possesses the requisite character, fitness, and moral
qualifications for admission to the practice of law.” Gov.Bar R. I(11)(D)(1). The
applicant’s record must justify “the trust of clients, adversaries, courts, and others
with respect to the professional duties owed to them.” Gov.Bar R. I(11)(D)(3).
“A record manifesting a significant deficiency in the honesty, trustworthiness,
diligence, or reliability of an applicant may constitute a basis for disapproval of
the applicant.” Id.
{¶ 17} In determining that Baudendistel had not proved that he possesses
the requisite character, fitness, and moral qualifications, the board considered the
factors set forth in Gov.Bar R. I(11)(D)(3) and (4).
{¶ 18} The board noted that Baudendistel had apparently abused alcohol
in the year and a half preceding his hearing before the board, but based on
Krznarich’s report, it believed that he was no longer abusing and was not
dependent on alcohol.
{¶ 19} The larger issue, according to the board, is Baudendistel’s lack of
candor during the admissions process. The board found that his testimony
regarding the June 2013 incident was “disjointed and frankly in many respects not
entirely believable, as he himself acknowledged.” The board was troubled by his
conduct after the crash, which it interpreted as an attempt to conceal the fact that
he had been drinking, and his efforts during his testimony to downplay the role of
alcohol in the incident.
{¶ 20} The board’s greatest concern, however, was the inconsistencies
between Baudendistel’s testimony and his June 19, 2013 e-mail reporting the hit-
and-run incident to the board. While his testimony emphasized the fact that he
had fallen asleep at the home of an acquaintance after drinking at a party with his
friends, his earlier e-mail made no mention of that fact. Instead, his e-mail states
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January Term, 2014
that following the accident, his “head began to throb in excruciating pain” so he
walked home “intending to get medically checked out and to return to place a note
on the car,” but when he got home, his headache substantially subsided without
medical attention, and he accidentally fell asleep. Baudendistel did not mention
his excruciating pain or the fact that he had contemplated seeking medical
attention in his testimony—until the panel members inquired about it near the end
of the hearing. These omissions, combined with Baudendistel’s admission that he
was immediately concerned about how his June 2013 auto accident would affect
the bar-admissions process, reinforced the board’s belief that Baudendistel was
not wholly candid and forthright about the incident. Based on this belief and the
paramount importance of honesty and integrity in the legal profession and their
primacy in assessing the character and fitness of an applicant for admission to the
bar, the board found that Baudendistel had failed to carry his burden of proving
that he currently possesses the requisite character, fitness, and moral
qualifications for admission to the bar. Therefore, the board recommends that his
current application be disapproved but that he be permitted to apply for the
February 2015 bar examination.
{¶ 21} Because we agree that Baudendistel failed to provide complete and
accurate information about his June 2013 auto accident, offering differing
explanations for his conduct during the admissions process, and initially omitting
the important detail that he had been drinking alcohol several hours before the
crash, we agree that he has failed to prove that he currently possesses the requisite
character, fitness, and moral qualifications for admission to the practice of law in
Ohio. See Gov.Bar R. I(11)(3)(g) (requiring an assessment of an applicant’s
character, fitness, and moral qualifications to include consideration of the
applicant’s failure to provide complete and accurate information concerning the
applicant’s past) and (h) (requiring the consideration of the applicant’s false
statements, including omissions).
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{¶ 22} Accordingly, Baudendistel’s pending application to take the bar
exam is disapproved. He may apply to take the July 2015 or a later bar exam,
provided that he submits a new application to register as a candidate for
admission to the practice of law in accordance with Gov.Bar R. I(3) and is able to
establish that he has the requisite character, fitness, and other qualifications.
Judgment accordingly.
PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
O’CONNOR, C.J., dissents and would allow the applicant to reapply for the
July 2016 or a later bar exam.
_______________________________
Keating, Muething & Klekamp, P.L.L., Richard L. Creighton Jr., and
James M. Jansing, for applicant.
Rendigs, Fry, Kiely, Dennis, L.L.P., and Jonathan Phelps Saxton, for
Cincinnati Bar Association.
_________________________
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