In re July 1986 Ohio Bar Examination Applicant No. 719

Holmes, J.,

concurring. The determination of a just and reasonable result in these bar examination cases has been, as noted by the majority and dissenting opinions, a most perplexing encounter. One can honestly come down on either side of the issues presented; however, when all factors are weighed in perspective, I must join those who have concluded that Applicant No. 719 and Applicant No. 1327 may continue in the practice of law without retaking the Ohio bar examination.

First, I realize that it is the duty of this court to protect the integrity of the bar examination system in Ohio and, in doing so, remain conscious of the need to apply the rules uniformly and fairly among the examinees, and also to be conscious of the need to serve the public interests in these matters.

My conclusion is primarily based upon a review of the technical data presented on the probabilities of both applicants passing the July 1986 bar exam had all of their essays been graded, an extrapolation of their scores on the essays that were graded, and a consideration of their scores on the MBE portion of the bar exam. Additionally, I have considered the factor that there has not been the slightest suggestion that either of these applicants was involved in, or was aware of, any unauthorized changes in their bar exam grades, and I have reviewed the evidence relating to their professional performance since being admitted.

Applicant No. 719’s actual weighted score in the MBE was 91; the essay scores for the two books, each containing two essays, were 15 and 16. Therefore, this applicant received an average passing score of 7.75 of a possible 10 on each of the four essays that were graded. Stephen P. Klein, *313Ph.D., who conducted the statistical analysis of the Ohio bar examination, stated in his report that: “In general, the candidates who received high scores on one essay question tended to receive high scores on the other 23 questions.” Accordingly, assuming that Applicant No. 719 performed as well on the essays that were not graded as this applicant did on the four that were, an average of 7.75 out of 10, this applicant would have received 186 points on the essay portion of the 1986 examination. Adding this to applicant’s MBE score of 91 would result in a score of 277, which would be in excess of the 270 points required for passage of the exam.

As to Applicant No. 1327, the actual weighted score of the MBE exam was 92. The scores of the two booklets graded were 16.5 and 18, or an average of 8.63 out of a possible 10, or 207.12 points on the essay questions. Adding this to Applicant No. 1327’s actual weighted score of 92 would result in a score of 299.12, which would be in excess of the 270 points needed for passing.

In support of Applicant No. 719’s motion for reconsideration here, a statistical analysis of the applicant’s bar exam performance was submitted by James A. Deddens, Ph.D. In addition, an expert opinion by Harvey S. Rosen, Ph.D., was presented by affidavit. The experts respectively concluded that it was “very likely” or “highly probable” that Applicant No. 719 would have passed the July 1986 Ohio bar examination if all of her essays had been graded.

It is recognized that the conclusions of these experts, as well as my conclusions, are all hypothetical in nature, in that we do not have the actual essay books to be graded. It is also recognized that it is possible to set forth figures to support any hypothesis. However, in the totality of the circumstances of the matters before us, I conclude that the hypothesis adopted here is a reasonable one in that we are unable to disprove it since court procedures have unfortunately destroyed the essay exam books and in like manner any means of disproving the hypothesis.

Additionally, I believe it to be fair that consideration be given to the absence of fault upon the part of the applicants and to their interim standard of practice in the profession which would tend to confirm the goal of the Ohio bar exam which is to determine the fitness of the applicant to practice law. Thus, I conclude that this goal has been met and, therefore, the applicants’ suspensions should be withdrawn.

Douglas, J.,

concurring. Because Justice Resnick’s well-reasoned majority opinion now comports with my original vote in these cases (see 60 Ohio St.3d 605, 606, 573 N.E.2d 593, 594, and 60 Ohio St.3d 606, 608, 573 N.E.2d 38, 39), I concur. It is fair, however, to point out that all the pertinent evidence and law now available to the court in both of these cases were available to us at *314the time the court made its original judgment in these matters and it is, at the very least, unfortunate that these two lawyers have been put through that which they have been required to endure.

Herbert R. Brown, J.,

concurring. This is one of the most troubling and difficult decisions that I have been required to face as a member of this court.

It is clear that the scores of both applicants (numbers 719 and 1327) were deliberately changed to benefit the applicants. Because of the alteration, each of these applicants had only two examination booklets (four answers) graded when, under the rule, all booklets (twenty-four answers) should have been graded.

I accept the assertion that these beneficiaries of this wrongful grade alteration neither knew of nor participated in the misdeed. No evidence has been brought to us to warrant making any other assumption.

Under the circumstances, the fair and correct remedy would have been to grade all the answers submitted by each applicant and to pass or fail each applicant by the same standard applied to every other similarly situated taker of the 1986 Ohio bar examination. Unfortunately, this is not possible. Sometime in 1987 (the exact date being unknown), the examination booklets for the July 1986 bar examination were destroyed. This destruction, I am satisfied, was routinely done. That action carries no taint of wrongdoing.

The problem then is this: Applicants who did everything required of them and whose grades were changed without their knowledge or complicity cannot have all of their examination answers graded because action taken by the court makes that impossible. In this situation I believe we, the court, bear a corporate or institutional responsibility for the destruction (albeit innocent) of the examination answers.

Having come to that conclusion, I turn to the evidence which remains before us concerning the performance of Applicants Nos. 719 and 1327 on the July 1986 Ohio bar examination.

Applicant No. 719 received scores of 15 and 16 on the two booklets which were graded. The applicant’s average score on these four questions was 7.75, above the pass standard of 7.5. On the Multistate Bar Examination (“MBE”), this applicant achieved a total which, when properly weighted, gave the applicant a score of 91. Of the 270 points required to pass the Ohio bar examination, one third (or 90 points) was allocated to the MBE. Thus, this applicant received scores on both portions of the bar exam which exceeded the grade required to pass. This applicant earned a passing grade on all material that is available to be graded and the strong probability (the evidence *315suggests odds of greater than 7 to 1) is that the applicant would have passed the entire exam if it could be graded.

Applicant No. 1327 received scores of 16.5 and 18 on the two booklets which were graded. The applicant’s average score on these four questions was 8.63, above the pass standard of 7.5. On the MBE, this applicant achieved a total which, when properly weighted, gave the applicant a score of 92. Of the 270 points required to pass the Ohio bar examination, one third (or 90 points) was allocated to the MBE. Thus, this applicant received scores on both portions of the bar exam which exceeded the grade required to pass. This applicant earned a passing grade on all material that is available to be graded and the overwhelming probability is that the applicant would have passed the entire exam if it could be graded.

The case before us is difficult for me because there is a slight chance that each of these applicants might have failed the examination if all answers had been graded. I am painfully sensitive to those (if there are any) who might have failed the 1986 Ohio bar examination and who scored as well as these two applicants on the portions of the exam which were graded. Further, the integrity of the bar examination is of the highest concern. I abhor the actions that were taken in the altering of grades.

In the final analysis, however, we must be fair with and do justice to the applicants who are before us in this case. We do not punish those who altered the scores by punishing these applicants. In a very real sense these applicants have also been the victims of the action done in changing their grades. Since the evidence strongly suggests that Applicant No. 719 and Applicant No. 1327 passed the July 1986 Ohio bar examination; since the only means of questioning that conclusion has been rendered impossible by the court; since the grade alteration itself appears to have been done by an agent, or agents of the court; and since the assumption must be made that Applicants Nos. 719 and 1327 were innocent and ignorant concerning the wrongdoing, I must change my earlier vote. I have concluded that no action should be taken which jeopardizes the standing of these two applicants as duly registered members of the bar of Ohio.