Tuesday, January 18, 2011

87th Installment. Ohio bar: Collection agency for the banks—The Hassan Jonathan Griffin matter—Part 1. Business debts aren't moral obligations

Question: What official process is still more capricious than a state-bar prosecution? Answer: A bar character and fitness evaluation in the State of Ohio. The Ohio bar denied Hassan Jonathan Griffin’s application because he couldn’t formulate a plan to discharge his $200,000 debt, incurred to finance his education. In California, the vague and open-ended character-and-fitness criteria threaten applicants' due process rights. (See for example, Hightower v. State Bar (1983) 34 Cal.3d 150) But Ohio proves that specificity is no automatic remedy. Ohio law expressly includes a candidate's financial mismanagement as ground for disapproval. (Ohio Gov.Bar R. I(11)(D)(3).) Griffin isn't the first case of the Ohio bar serving as a collection agency. In re Application of Manayan (2004) 102 Ohio St. 3d 109, the candidate's tax arrears contributed to denial. (See also another Ohio tax arrears case, In re Application of Carr-Williams (1992), 63 Ohio St.3d 752.) Ohio is serious about attorneys' personal finances. (In re Application of Dickens (2005) 106 Ohio St.3d 128 [financial responsibility is “critically important for lawyers”]; In re Application of Manayan (2004) 102 Ohio St. 3d 109 [“we expect applicants for admission to the Ohio bar and bar members to scrupulously honor all financial commitments”].)

The state-bar courts may be the only venue where Ohio courts pretend indebtedness creates an "obligation." Outside the bar courts, Ohio judges follow the contemporary attitude toward breach of contract. Like all U.S. jurisdictions but with more fanfare, the Ohio courts refuse to treat breach of contract as a morally offensive disregard for obligations: they refuse punitive damages to express moral opprobrium for contract breach. Ohio courts can be heard to quote Justice Oliver Wendell Holmes, Jr., that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it--and nothing else." (Holmes, The Path of the Law (1897) 10 Harv.L.Rev. 457, 462.) Non-performance of a business contract doesn't create a moral obligation, and repayment of debt is a contractual performance like any other. A loan is one variety of business deal, and like other varieties, it creates no moral obligation to perform.

Also, those rare jurists favoring punitive damages for bad-faith repudiation of a contract would refuse to create a moral obligation from Griffin’s indebtedness. (See for example, Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 774 - 784 [Bird, J., dissenting and concurring].) These morally nuanced judges advocate evaluating the parties' expectations as influenced by the social mores governing the same and similar transactions, and the Ohio Supreme Court considered neither. It ignored the student loans burdening many young lawyers, who have no idea how to repay. It also ignored how the bank bailouts affected our ethical sensibilities. After banks incurred an unsustainable debt with no plan for repayment, no prosecutions or even ignominy followed. Not just the banks. American government indebtedness has shifted ethical sensibilities concerning repaying loans. Having a huge debt with no idea of how to repay it accurately describes today's U.S. government.

Even where the breach is in bad faith, Ohio law, like the laws of all U.S. jurisdictions, doesn't punish—only compensates—breach of contract. Like all U.S. states except a couple (including California), Ohio consistently took this stance long before the sea change in American ethical sensibilities. Griffin’s breach of his student loan agreement, an ordinary business contract, doesn't need sophisticated justification: Griffin was unable to pay his student loan for the best of reasons. A contract, as Justice Holmes held, is only a prediction; who can blame Griffin for failing to predict the near collapse of the U.S. economy, when few economists succeeded. Bad luck, not just for him but also his creditors, who gambled on a better business outlook.

Next Installment. Should all lawyers be narrow-minded moralists?


Anonymous said...

Sorry, but it is not the debt that is considered wrong. It is the lack of any effort on the debtor's behalf to do anything but let the debt sit and accumulate interest. It is apparent the Court would have considered a ch. 13 filing an acceptable effort, but he didn't even follow through on that. He obviously was not even in negotiations with the student loan administrator or the credit card companies. As a law school grad, he should have enough savvy to negotiate debts and file a ch. 13. Thousands do it pro se every year with no legal training whatsoever.

I'm not an attorney, I'm a paralegal student who has done some work for attorneys as an intern and independently. Also, I'm not some college age kid whose view of life is predominantly academic. I'm a 50 year-old father of three adult children who has seen the world from many perspectives, including one of of large debts. There is no way in this world I would work for a guy like this one. Furthermore, any bar organization or state that would license this guy before he develops and begins to implement a repayment plan would lose all credibility to me and the vast majority of America.

You use the argument that attitudes have changed toward debt because of the mortgage fiasco and its end results. Well, the average American's faith in the banks and the government took a big hit over this. Most of them are still making huge efforts to repay debts which whether or not they are moral obligations are legal obligations. It is as simple as the old adage by which I was raised: "Two wrongs don't make a right!"

As for the banks involved in the crash, they behaved illegally and some individuals (not enough) have been punished, but the government did its duty by bailing them out because it had an obligation to protect America from a total collapse. Was it the right move? It has worked, so far. There are other reasons for our current economic condition. Was it abused by Wall Street? Yes. But that issue is still being addressed, or so we are led to believe.

To justify this man's behavior or any others on what happened with Wall Street is akin to justifying intentional homicide because O.J. supposedly got away with it, not that I agree he did it.

In this instance, as most others, it is not the morality of the debt that is in question, but the legality of the debt. Since the debt is unquestionably legal, it must be repaid. A simple plan to repay it is all the Court is looking for.

Any court that addresses debt as a moral issue is wrong. However, in this instance, the Court is not being asked to adjudicate the debt but to attest to the character and fitness of the debtor to perform a given job which demands high moral fiber and strong character to be fit to perform the job. And, please don't counter with the argument that many attorneys lack these qualities because that is not a proper justification for disregarding this man's fitness, but more of a statement as to the poor quality of the attorney regulatory system.

Your argument is well stated and fairly persuasive. But to one who has been in debt of one sort or another all of his life, it is full of holes and can be seen clear through when analyzed carefully. Heck, it doesn't even require that close an inspection because its entire premise is wrong. You base your argument against the Court on the fact the debt is owed when the Court's decision was clearly based on the debtor/applicant's failure to implement a re-payment plan or to even put himself into a better position to repay the debt.

Stephen R. Diamond said...

Morality was the Ohio bar's concern. Proving that contention was the point of citing Ohio bar law which deems financial management a moral issue. You raise a different argument, regarding the prudential rather than moral significance of Griffin's conduct. The prudential argument plays a supporting role in the decision. It's the topic of the next Installment.

Anonymous said...

There was a similar case in New York recently. and of course how is the poor sap going to be able to even begin paying it if he can't make a living? Similar to the asinine laws that deprive high school drop-outs and those behind on child support of driver's licenses.