In re July 1986 Ohio Bar Examination Applicant No. 719

Alice Robie Resnick, J. In 1986, an applicant had to receive at least 270 points on the Ohio bar examination in order to pass. However, if an applicant scored in the upper 60th percentile on the Multistate Bar Examination (“MBE”), only two of his or her twelve essay booklets (two questions per booklet), selected at random, were graded. If the applicant received at least 14 points on each booklet, he or she was afforded a presumption of passing the bar examination and no other essay questions were graded. The total examination grade for those persons who received a presumption of passing was calculated by multiplying the MBE weighted score by three. All essay booklets were graded for applicants who did not score in the upper 60th percentile on the MBE. All essay booklets were also graded for applicants who scored in the upper 60th percentile on the MBE but who achieved fewer than 14 points on one or both of the randomly selected essay booklets. For these applicants, the total bar examination score was calculated by adding the MBE weighted score with the total of the essay booklet scores. Applicant 719 scored in the 23.7th percentile on the MBE. In other words, only 23.7 percent of the other Ohio bar examination applicants obtained MBE scores lower than that of Applicant 719. Because Applicant 719 was not in the upper 60th percentile on the MBE, all of her essay booklets should have been graded. However, her applicant number was incorrectly placed on the list of applicants who scored in the upper 60th percentile on the MBE, and it was incorrectly omitted from the list of applicants who scored in the lower 40th percentile. Furthermore, an incorrect MBE weighted score was recorded on the Master Grade Sheet for Applicant 719, giving her credit for a higher [309] score than she actually earned. As a result of the above, Applicant 719 was treated as though she had scored in the upper 60th percentile on the MBE, and only two of her essay booklets were graded. She received a 15 and a 16 on these two essay booklets and was thus passed automatically. Her total examination score was calculated by multiplying the incorrectly recorded MBE weighted score by three. Applicant 1327 scored in the 33.4th percentile on the MBE; only 33.4 percent of other Ohio bar examination applicants obtained MBE scores lower than his score. Because he did not score in the upper 60th percentile on the MBE, he, too, should have had all of his essay booklets graded. However, as with Applicant 719, Applicant 1327 was treated as though he had scored in the upper 60th percentile on the MBE. His applicant number was incorrectly placed on the upper 60th percentile list and was omitted from the lower 40th percentile list. An incorrect MBE weighted score was then recorded on the Master Grade Sheet for Applicant 1327, giving him credit for a higher MBE score than he actually earned. Only two of his essay booklets were graded. He received a 16.5 and an 18 on these, and he was passed automatically. His total examination score was calculated by multiplying the incorrectly recorded MBE weighted score by three. In each instance the applicants’ essay booklets have been destroyed at unknown times and by unknown court employees. As a result there is no way to return to the essay booklets of either Applicant 719 or 1327 to grade all of the essay booklets in order to determine whether in fact a passing score would have been earned. The converse is also true: there is no existing evidence indicating that if all of the essay booklets were graded, the applicants would have failed the 1986 Ohio bar examination. Thus, it is impossible for either of the applicants to demonstrate with certainty that he or she passed the examination, nor is it possible for the court to demonstrate that either applicant failed the examination since the test booklets have been destroyed. The irregularities which led to the suspension of Applicants 719 and 1327 were first discovered and made known to this court by a court employee in April 1989. The court initially inquired into the cause and then referred the matter to the Franklin County Prosecutor’s Office for investigation. The matter was ultimately investigated by a special prosecutor and presented to the Franklin County Grand Jury. As a result, the grand jury returned no indictments. It determined there had been tampering with the examination records but found no evidence establishing that Applicants 719-and 1327 had any knowledge of or participated in any manner in the tampering. However, it is the duty of this court to determine if there is sufficient evidence which would establish with substantial certainty that Applicants 719 and 1327 did [310] not, in fact, earn a passing score on the 1986 Ohio bar examination thus requiring them to retake the Ohio bar examination. The practice of law is a right which is protected by the Constitutions of the United States and the state of Ohio. It is a right which the United States Supreme Court has deemed fundamental. See Supreme Court of New Hampshire v. Piper (1985), 470 U.S. 274, 281, 105 S.Ct. 1272, 1277, 84 L.E.2d 205, 211. The United States Court of Appeals for the District of Columbia in Laughlin v. Wheat (1937), 95 F.2d 101, 102, quoting from McMurchie v. Superior Court of Yavapai Cty. (1923), 26 Ariz. 52, 56, 221 P. 549, 550-551, noted: “ ‘The license which an attorney holds to practice his profession is not a mere indulgence, revocable at the pleasure of the court, but it is a right with which he has been invested, to hold during good behavior, and cannot be lightly or capriciously taken from him. It is acquired by order and judgment of a court, after examination into his moral and intellectual qualifications. He can only be divested of that right by a like judgment of court, entered after due notice and inquiry and opportunity to be heard, and based upon some conduct on his part which makes him unworthy to further engage in the practice of law.’ ” In the cases before us no wrongdoing on the part of either applicant has been revealed. Additionally, both applicants scored relatively high on the two essay booklets which were graded. Recently, we have had Stephen P. Klein, Ph.D., study and review the Ohio bar examination. Dr. Klein noted in a report entitled “Statistical Analysis of the Ohio Bar Examination” that: “In general, the candidates who received high scores on one essay question tended to receive high scores on the other 23 questions.* * * ” Additionally, Dr. Klein concluded that: “1) It is usually much easier to pass the Ohio bar exam than it is to pass the exams in most other jurisdictions. * * * 5) There is a high correlation between MBE and Ohio essay scores; i.e., candidates who earn relatively high scores on one part of the exam also tend to earn high scores on the other part.” Both of these applicants did in fact receive relatively high scores on the two essay booklets which were graded. Hence according to Dr. Klein they would “also tend to receive high scores” on the remaining test booklets. The pass rate for the July 1986 exam was 85.3%. Thus, only 14.7% of the applicants who took that exam failed it. Both Applicant 719 and Applicant 1327 scored above the 14.7th percentile on the MBE. Because of the high correlation between MBE and essay scores, we may assume they would have scored well on the essay portion of the exam, and would have passed the entire exam. [311] There is no evidence which tends to establish that either applicant had knowledge of or participated in the score changes. These applicants have engaged in the practice of law for nearly five years and have not been involved in any type of disciplinary action. Due to the destruction of the test booklets in question, there remains no way to determine whether in fact these applicants failed the examination. Lastly, one of the applicants has been admitted to the bar of another state by examination. In sum, the practice of law is a fundamental right which cannot be lightly withdrawn. In both of these cases irregularities have in fact occurred relating to the MBE test score. Both of these applicants were given the presumption of passing the 1986 Ohio bar examination after only two essay booklets were graded. Based upon this evidence, to require these applicants to take another bar examination after nearly five years of exemplary practice of the law would be unjust and inequitable. As soon as the tampering was brought to the attention of the Chief Justice and Justices of this court a full-scale independent investigation was conducted. No indictments were returned. Since the booklets have been destroyed by court employees and we cannot determine with exactitude whether Applicants 719 and 1327, in fact, did not pass the bar examination, we shall continue to maintain the presumption accorded them in 1986. We will not withdraw from these applicants the privilege to practice law in the state of Ohio since it has not been shown that it was the personal conduct of these individual applicants that caused this situation to arise. The prior suspension of this court from the practice of law of Applicants 719 and 1327 is hereby withdrawn. Applicants 719 and 1327 are hereby reinstated to the practice of law in the state of Ohio. Suspensions withdrawn. Sweeney and Douglas, JJ., concur. Holmes and H. Brown, JJ., concur separately. Moyer, C.J., and Wright, J., separately dissent.