A Higher Bar

Lead Article From The Practice March/April 2018
Revisiting character and fitness in the profession

In this issue of The Practice, we explore the origins, conceptual applications, and tensions surrounding the legal profession’s “character and fitness” qualification—a qualification that is a prerequisite for admission to the practice of law throughout the United States. Our goal is not to provide any definite answers as to why—or why not—a character and fitness qualification is necessary to become a lawyer, nor is it to offer or endorse a definite list of rationales, such as having a criminal or mental illness history that must be considered in character and fitness assessments. Rather, given the recent attention that the issue has had in the press, including a nationally televised 60 Minutes story (see “Against the Odds”) and a number of New York Times articles on the topic, our intent is merely to begin a dialogue that asks our readers to consider the qualification as it is applied by state bar licensing agencies today against the backdrop of the current shifts in social and cultural norms impacting the larger legal profession. Similarly, in spite of the legal profession’s efforts to establish standards for “good moral character” for lawyers, data shows that public perceptions of the ethics and honesty of lawyers have remained low for decades (see the chart below).

This issue of The Practice tackles the issue from a number of angles. First, this lead article examines the contexts behind the character and fitness qualification as it pertains to initial entry to the bar and also outlines a series of tensions that exist in the current system. (Disciplinary actions following admission to the bar with respect to character and fitness issues are beyond the scope of this article.) We then offer, in “Character without Borders,” a comparative angle on the issue, first examining how it is applied outside the United States in the Canadian legal profession and then outside of law altogether through the context of an analogous profession—medicine. We then explore, in “Teaching Ethics and Professionalism,” how law schools are approaching issues of professionalism and ethics more broadly. Finally, we hear from two leaders on the topic—Judge Jonathan Lippman, the former chief of the New York Court of Appeals and someone who was in charge of regulating one of the county’s most prestigious legal bars, and Shon Hopwood, currently a professor at Georgetown Law School and the protagonist of the recent 60 Minutes story mentioned above.

The inclusion of a character and fitness qualification as a formal criterion for admission to the bar in the United States can be traced back to the late 18th century.

Since its introduction as a requirement to admission to the bar in the United States, assessing a candidate’s character and fitness has, as Stanford Law School professor Deborah Rhode has argued, been steadfast. She writes in a seminal article on the subject in the Yale Law Review:

Within the American bar, moral character requirements have been a fixed star in an otherwise unsettled regulatory universe. Educational standards came and went, but, at least after the colonial period, virtue remained a constant prerequisite, in form if not in fact.

In light of the critical role given to this qualification of admission to practice law by law schools, boards of examiners and state bars, and the judiciary, many continue to wrestle with its purpose and effect on the legal profession. As societal and cultural norms change, the bar and the courts have been challenged by various applicants seeking admission to reconsider the true and fair meaning of “character and fitness” as a qualification for practicing law. This issue of The Practice endeavors to provide a venue of critical engagement with this important issue.

Origins of character and fitness

The inclusion of a character and fitness qualification as a formal criterion for admission to the bar in the United States can be traced back to the late 18th century. Rhode writes, “In the post-Revolutionary period, animus against lawyers’ ‘blood-suck[ing]’ practices frequently ran high.” It was therefore hardly surprising that states began requiring certain character and fitness and other bar membership requirements. For instance, during this period, Massachusetts began requiring references from an applicant’s minister to become a practicing lawyer. Other states, including New York and North Carolina, mandated examinations by the courts as to whether a potential lawyer was “virtuous and of good frame” and possessed “probity, honesty, and good demeanor.”

During the subsequent decades, similar character and fitness rules were established in a majority of the states with one’s criminal history being one of the most common factors considered in assessing one’s eligibility. However, these rules were loosely enforced, often idiosyncratic in content, and even outright discriminatory in intent and effect. For instance, due to the lack of centralized records on the conduct of applicants, individuals could easily venue shop and run afoul of the various state bar rules. Indeed, in an extensive study on the denial of admission rates during this period, Rhode found that “almost no instances of denial of admission on character-related grounds” occurred in the 18th century.

The one major demographic that remained excluded on character and fitness grounds during this period and into the late 19th century were women. In 1873 Myra Bradwell, a married woman, was denied a license to practice law in Illinois with the state’s Supreme Court holding that “as a married woman [she] would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client.” Bradwell appealed the case before the U.S. Supreme Court. In this case, the Supreme Court upheld the lower court’s decision on the basis that Bradwell was married and, more specifically, a woman. Associate Justice Samuel Freeman Miller stated in his opinion:

[I]t certainly cannot be affirmed as an historical fact that this (the practice of law) has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it to many of the occupations of civil life. The constitution of family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which belongs to the domain and functions of womanhood. … A married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him … rendering a married woman incompetent to fully perform the duties and trusts that belong to the office of an attorney and counselor.

It was not until the late 19th and early 20th centuries that character and fitness qualifications began to become more formalized in ways that a member of the modern legal profession would recognize—developments that both tracked and contributed to an overall movement to professionalize the bar and profession, including the formation of the first law schools. For instance, as Rhode notes, between 1880 and 1920, most states began adopting formal entry procedures for new lawyers. By 1917, three-quarters of all states had established centralized boards of bar examiners. And, by 1927, nearly two-thirds of all states made efforts to strengthen character and fitness requirements via mandatory interviews, questionnaires, and other similar measures. Included in this evolution was the founding of the American Bar Association (ABA), in 1878, with the support of many states, law schools, and courts with the specific mandate of establishing more-uniform standards for competence in the profession and advocating for more-uniform criteria and higher professional standards. And then in 1930 the National Conference of Bar Examiners (NCBE) was established, a body specifically founded “to work with other institutions to develop, maintain, and apply reasonable and uniform standards of education and character for eligibility for admission to the practice of law.”

By the early part of the 20th century, most of the states had established boards of examiners, bar committees, or associations.

Many of these early character and fitness tests were arguably less about protecting the public and more about excluding certain types of individuals. For instance, many of these early policies were put in place due to the influx of immigrants, often from Eastern Europe. Rhode notes:

Much of the initial impetus for more stringent character scrutiny arose in response to an influx of Eastern European immigrants, which threatened the profession’s public standing. Nativist and ethnic prejudices during the 1920s, coupled with economic pressures during the Depression, fueled a renewed drive for entry barriers.

While over time the overtly discriminatory aspects of the character and fitness requirement dissipated, the criteria used by a state board of bar examiners was based on the general political and social climate in the particular state or region of the country. For instance, during the Cold War, political affiliations crept in as a proxy for character and fitness. Thus, in 1953, during the height of McCarthyism, the board of bar examiners in New Mexico denied Rudolph Schware the ability to sit for the bar exam on the basis that he had not shown “good moral character”—while acknowledging he was otherwise qualified in all other respects. Schware, who had been arrested but never tried or convicted prior to 1940, had been an acknowledged member of the Communist Party for nearly 10 years. The Supreme Court ultimately reversed the decision, noting that the “petitioner’s membership in the Communist Party from 1932 to 1940 does not justify an inference that he presently has bad moral character.”

Despite these challenges, by the early part of the 20th century, most of the states had established boards of examiners, bar committees, or associations and had formally adopted rules, applications, and procedures that attempted to scrutinize the character and fitness of applicants for admission to the state bar. Currently, the character and fitness standard is applied throughout the United States by every state bar. Indeed, and as developed below, new and increasingly intrusive criteria, such as questions about debt and mental health, are beginning to appear on many character and fitness questionnaires.

Why character and fitness?

Why does the profession have a character and fitness requirement?

On one level, it can be seen as a means of building a sense of professionalism and demarcating law as a distinct field of professional conduct. As Rhode argues, “In both its instrumental and symbolic dimensions, the certification process provides an opportunity for affirming shared values. … Excluding certain candidates on character grounds serves to designate deviance, thus establishing the boundaries of a moral community.”

During the Cold War, political affiliations crept in as a proxy for character and fitness.

From this point of view, the character and fitness requirement—irrespective of its actual efficacy—serves the internal purpose within the profession of building and maintaining a sense of having a professional community. Quoting a New York character and fitness committee chairman, Rhode notes: “After all, this is a profession. Obtaining a license to practice law is not like getting a driver’s license.”

On another level, the requirement is also about public protection. According to the ABA in its 2018 Bar Admission Requirements Guide, a document copublished with the NCBE:

The primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice. The lawyer licensing process is incomplete if only testing for minimal competence is undertaken. The public is inadequately protected by a system that fails to evaluate character and fitness as those elements relate to the practice of law. The public interest requires that the public be secure in its expectation that those who are admitted to the bar are worthy of the trust and confidence of clients may reasonably place in their lawyers.

Echoing this sentiment, Justice Frankfurter wrote in the context of the Schware case:

One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to “life, liberty and property” are in the professional keeping of lawyers. … From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as “moral character.”

In a recent interview with The Practice, Marilyn Wellington, executive director of the Board of Bar Examiners (BBE) for the Commonwealth of Massachusetts, very much sees her and the Board’s mandate through this lens. “Our board believes our charge is protecting the public by ensuring that we are admitting people who are knowledgeable and competent to practice law in the Commonwealth,” she says. She goes on:

We view part of this is that these individuals should be people of honesty, integrity, and trustworthiness. We view character and fitness not as a qualification to keep people out because of their past; rather we see the qualification as ensuring that everyone who brings a different background to the legal profession does so in a manner that allows us to build a profession that meets the needs of the public.

Operationalizing character and fitness

Given all of this, how do state bar admission agencies actually operationalize the character and fitness requirement?

Assessment bodies. In all states, character and fitness requirements are formally promulgated by state courts. As illustrated below, the courts also have final say on all character and fitness decisions. In the majority of the states, the courts delegate authority to boards of bar examiners, who administer the bar exam as well as consider character and fitness applications. Twenty-three states, however, have formed dedicated character and fitness boards, which are fully separate and distinct from the examination board. Wellington explains how it works in Massachusetts, where character and fitness is handled within the board of bar examiners:

The Board of Bar Examiners has a five-member board: five practicing attorneys appointed by the court and by the justices of the Supreme Judicial Court to five-year terms. They can serve up to two five-year terms. There is also a staff of eight, which includes a character and fitness team of an investigator and a staff attorney. Character and fitness questions are written by the Board in consultation with the court, and we are charged with implantation and operationalization.

In most states, interviews are the exception rather than the rule and are reserved only for the most troublesome matters flagged in an individual’s application for admission.

Irrespective of the specific setup, however, all states have formal institutions charged with assessing the character and fitness in bar admissions.

Timing. Character and fitness requirements come up as early as law school admissions. Indeed, Rule 504 of the ABA mandates that each law school note on their website:

In addition to a bar examination, there are character, fitness, and other qualifications for admission to the bar in every U.S. jurisdiction. Applicants are encouraged to determine the requirements for any jurisdiction in which they intend to seek admission by contacting the jurisdiction. Addresses for all relevant agencies are available through the National Conference of Bar Examiners.

Moreover, the rule stipulates that law schools educate students about the importance of determining the applicable character, fitness, and other requirements for admission to the bar in each jurisdiction in which they intend to seek bar admission.

While the majority of states conduct character and fitness reviews concurrently with the bar examination application process, nine states, including Illinois, Texas, and Ohio, require law students to formally register with their respective board of bar examiners in their first or second year of law school to begin the screening process. Other states, like New York, do not begin the character and fitness inquiry until after the applicant takes the bar exam.

The character and fitness questionnaire used throughout the United States is not the only prerequisite that bears upon the ethical character of applicants. Law students seeking to practice law in 48 of the 50 states are required to take the Multistate Professional Responsibility Exam, which tests their competency with respect to the Model Rules of Professional Conduct.

Questionnaires. As any practicing lawyer knows, all state bar admission agencies employ a set of extensive questionnaires as one of the primary means of assessing an applicant’s character and fitness. Nearly one-third of states, including Alabama, Maryland, Michigan, and Ohio, use the NCBE guidelines as a general starting point. (States are free to amend the guidelines on an individual basis.) Generally speaking, the NCBE guidelines ask questions along six categories: (1) criminal history, (2) employment history, (3) education history, (4) financial history, (5) lawyering history (if applicable), and (6) health/impairments. In each case, the form requires applicants to provide a detailed history and to note if there have been any disciplinary issues, abuses, violations, or the like. Should an applicant report an issue, the form requires him or her to provide full details of the issue in question as well as primary source documentation. For example, should an applicant report that he or she filed for bankruptcy, the NCBE requires the applicant to attach the “schedule of indebtedness, petition for bankruptcy, and discharge from bankruptcy order.” There is also a catch-all question of “Within the past five years, have you exhibited any conduct or behavior that could call into question your ability to practice law in a competent, ethical, and professional manner?” Although many states utilize the NCBE character and fitness questionnaire, each state makes its own determination about an applicant’s candidacy on the basis of a report that the NCBE prepares.

Other states, including New York and New Jersey, employ their own forms. In New York, for instance, the questionnaire solicits information about an applicant’s education, employment, military record, criminal record, civil legal record, mental health condition, substance abuse history or history of addictions, child support, and financial matters. Interestingly, New York’s questionnaire also asks whether “the applicant has ever organized or helped to organize any organization the applicant knew was advocating or teaching that the government of the United States or any state or political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means.”

Some states maintain “automatic disqualifiers”—answers that will automatically bar an applicant from the practice of law.

At the end of the day, because courts are the ultimate arbiters, they must approve the questionnaires. Wellington notes, “In Massachusetts, character and fitness questions are written by the Board in consultation with the court. If we wanted to change or add questions, we would need court approval.”

References and interviews. In addition to requiring applicants to complete a character and fitness questionnaire, most states also require personal character references. Moreover, some state bar admission agencies interview applicants. In most states, however, interviews are the exception rather than the rule and are reserved only for the most troublesome matters flagged in an individual’s application for admission.

Affidavits. Most, if not all, applications require either an attestation of the applicant and/or an affidavit or sworn statement that the information and answers provided by the applicant are true and correct to the best of the applicant’s knowledge. (Indeed, the Georgia Board of Bar Examiners has even proposed that law students execute an affidavit prior to graduating stipulating that all statements in their law school admissions documents are true and correct in an effort to head off any potential issues during the bar’s character and fitness review.) Wellington points out that an application for admission to practice law in Massachusetts is a court filing and it is docketed as a civil filing—the only state that treats applications for admission to practice law in this manner. Applicants must respond to all the questions relating to their character and fitness and produce sufficient answers and supportive evidence that the reviewing agency finds satisfactory or they risk being deferred or barred from admission.

Assessment process. What causes something to trigger a review—and what does it entail? To begin, it should be stressed that the ABA is clear: “The bar examining authority should determine whether the present character and fitness of an applicant qualifies the applicant for admission” (emphasis added). As such, at least on a formal level, one’s current character and fitness is at issue. At the same time, the actual assessment process of an applicant is largely a state-by-state prerogative.

For instance, some states maintain “automatic disqualifiers”—answers that will automatically bar an applicant from the practice of law. For instance, in Mississippi a felony conviction is a complete bar to the admission of practice. In other states, including Texas, Kansas, and Missouri, a felony conviction bars an applicant for five years after the completion of one’s sentence.

The majority of states, however, do not have automatic disqualifiers, viewing cases on an individualized basis. Indeed, the NCBE’s Comprehensive Guide to Bar Admission Requirements 2018 notes that 13 categories of relevant conduct should cause state bar admission agencies to engage in further inquiry: (1) unlawful conduct; (2) academic misconduct; (3) false statements, including omissions; (4) misconduct in employment; (5) acts involving dishonesty, fraud, deceit, or misrepresentation; (6) abuse of the legal process; (7) neglect of financial responsibilities; (8) neglect of professional obligations; (9) violation of an order of a court; (10) evidence of mental or emotional instability; (11) evidence of drug or alcohol dependency; (12) denial of admission to the bar in another jurisdiction on character and fitness grounds; or (13) disciplinary action by a lawyer, disciplinary agency, or other professional disciplinary agency in any jurisdiction.

Even in a state like Massachusetts that does not use automatic disqualifiers, lack of candor, inconsistent statements, or evidence of unlawful conduct may provide sufficient cause for further inquiry by a state bar admissions agency or committee.

Wellington points out that in Massachusetts there are no automatic disqualifiers to admission, in part because the Supreme Judicial Court has directed the Board of Bar Examiners to take a rehabilitation approach. The focus is on actual conduct and behavior of the applicant and looking at the whole person (for more on this approach, see “A Matter of Justice”). Thus, if there are concerns, factors such as the applicant’s age at the time of the conduct, seriousness of the conduct, candor, evidence of rehabilitation, and other mitigating factors are considered. Wellington comments:

I get very concerned about automatic disqualifiers because there’s no one factor that is going to tell you whether somebody would be a good member of the bar or not. We have to understand the totality of the person—who that person is from every angle. When we see a troublesome spot, we want applicants to tell us the context and help us figure out what was going on.

Wellington stresses, however, that even in a state like Massachusetts that does not use automatic disqualifiers, lack of candor, inconsistent statements, or evidence of unlawful conduct may provide sufficient cause for further inquiry by a state bar admissions agency or committee. For example, she notes that her staff flags nearly 50 percent of the approximately 2,000 applications each year for follow-up of some type. More often than not, it is simply a request for clarification, usually via an e-mail asking the applicant to clarify or elaborate on information that was disclosed in the character and fitness questionnaire. In other cases, investigators might write the applicant asking for more-specific documentation or for a referral to another source (for example, a court) to validate a statement made in the questionnaire.

According to published ABA rules, state bars should consider nine factors in the process of assigning weight and significance to prior conduct: the applicant’s age at the time of the conduct; the frequency of the conduct; the reliability of the information concerning the conduct; the seriousness of the conduct; the cumulative effect of conduct or information; the evidence of rehabilitation; the applicant’s positive social contributions since the conduct; the applicant’s candor in the admissions process; and the materiality of any omissions or misrepresentations.

Based on the application of these factors, in a typical year in Massachusetts, only 15 or so cases are so troublesome that they actually go to the BBE for an interview. These interviews are informal, and the applicant can be accompanied by an attorney or counselor. Of the 15 or so that go to the Board, most are resolved after the interview, with only a few going forward to a more formal hearing before the Supreme Judicial Court. Indeed, Wellington notes, “We purposely schedule the interview so that you can, if you get through the interview, get admitted on time with your classmates.” Of the few that do require more investigation, the Board typically works with an outside firm to conduct a months-long investigation, the results of which are typically presented before a full bench of the Supreme Judicial Court. The Court’s ruling on the issue is final.

Other states have different processes; however, the core goal is the same: to license only lawyers who have the character and fitness to maintain the trust of their clients, the public, and the system of justice as a whole. However, and as the following sections make clear, although the overall goal may be correct, there are a number of tensions in putting it into practice.

Tensions in character and fitness

As we have seen, the character and fitness requirement arose out of a need to defend the integrity of the profession and protect the public from substandard practitioners. Yet, although these motivations continue on to this day, there remain areas of ambiguity and tensions regarding the implementation and underlying purpose of the requirement. A few such instances merit further discussion.

Lack of clarity. What counts as a criterion for assessing character and fitness in the modern U.S. legal profession? Leaving aside whether a state uses automatic disqualifiers or not, there are very real questions as to what category of questions should be used to assess character and fitness standards. Indeed, this tension roots itself in the inherent vagueness of character and fitness from the outset. As the Supreme Court wrote in Konigsberg v. State Bar of California 353 U.S. 252 (1957), “[T]he character requirement is unusually ambiguous and has shadowy rather than precise bounds.” The California bar concurred, as evidenced in The Bar Examiners Handbook (Stuart Duhl ed., 2ed. 1980), which states unequivocally that “no definition of what constitutes grounds for denial of admission on the basis of faulty moral character exists.” Moral turpitude has often been a proxy for the lack of a more uniform definition. However, as the Florida Supreme Court found in In Re Florida Board of Bar Examiners 373 So. 2d. 890 (1979), “[A] more appropriate definition of the phrase … requires an inclusion of acts and conduct that would cause a reasonable person to have substantial doubt about an individual’s honesty, fairness and respect for the rights of others and for the laws of the state and the nation.”

If you have a heavy debt load but you’re handling it responsibly, then that’s not our concern.

Marilyn Wellington, executive director of the Massachusetts Board of Bar Examiners

For instance, many states now have questions designed to elicit information about an applicant’s mental and physical health, including the NCBE. Is disclosure of an applicant’s earlier or ongoing clinical depression germane to character and fitness? For example, a previous NCBE form, which has since been retired, asked whether the applicant had been diagnosed or treated for “bipolar disorder, schizophrenia, paranoia or any other psychotic disorder” within the past five years. Louisiana, which utilized the form, required those who answered yes to produce detailed medical information. After a Department of Justice investigation, Louisiana agreed not to ask “unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment,” with the settlement requiring “the [Louisiana] court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations or onerous monitoring and reporting requirements.”

By the same token, should one’s financial well-being, including a new lawyer’s student debt load, be a concern? Recent data shows admission regulations in at least 22 states punishes borrowers who fall too far behind in student debt payments by denying or revoking professional licenses. This includes an aspiring New York attorney who, in 2009, was prohibited from joining the bar due to having more than $400,000 in student debt and interest penalties. The judges who denied the application wrote, “Applicant has not made any substantial payments on the loans. He [the applicant] has not presently established the character and general fitness requisite for an attorney and counselor-at-law.” Wellington notes that Massachusetts takes a slightly different view:

In Massachusetts, we do not look at an applicant’s debt load because our concern is financial responsibility. If you have a heavy debt load but you’re handling it responsibly, then that’s not our concern. Many states are now looking at debt load because their concern, or assumption, is the higher your debt load, the more risk there is of you misusing client funds. That’s not our philosophy.

In a social media era, what role does its use or misuse play in a prospective lawyer’s character and fitness examination? Indeed, in 2009, Florida became the first state to institute a policy of examining the social media accounts of potentially troublesome applicants. Under the policy, those applicants with certain questionable backgrounds would be required, on a case-by-case basis, to submit their username and password for all their social media accounts.

What about their immigration status? What about other “noncriminal” conduct, like speech? There is little agreement as to whether—and if so, how—to consider and apply these criteria.

From a different angle, should more “affirmative” attributes of character and fitness be emphasized? Put differently, should the profession require a certain amount of community volunteer work before a law license is issued? Should it have a law school pro bono mandate? In her Yale Law Review article, Rhode notes that the profession has thought about this issue and provides a quote from a 1926 North Carolina court order:

[Upright character] is something more than an absence of bad character. … [A candidate] must have conducted himself as a man of upright character ordinarily would, should or does. Such character expresses itself, not in negatives nor in following the line of least resistance, but quite often in the will to do the unpleasant thing, if it is right, and the resolve not to do the pleasant thing, if it is wrong.

The lack of clarity surrounding character and fitness criteria—again, as separate from how these criteria might be assessed vis-à-vis any specific applicant—has the potential to create fundamental discrepancies in how state bar processes play out.

Lack of transparency, consistency, and uniformity. Even assuming there is a clear understanding of what character and fitness is, there is often a lack of transparency and consistency in the review of character and fitness cases that come before state bar admission committees. For instance, in 2018, 13 states, including Washington D.C., did not publish their codified standards of review with respect to character and fitness requirements. In addition, all state bar admissions committees are not equal, with some being empowered and adequately funded to perform the important service of vetting future attorneys, with 13 states actually delegating power to a separate entity (for example, a specific commission separate and apart from the board of bar examiners).

The lack of clarity, transparency, and consistency ultimately leads to a lack of uniformity, whether with respect to what one’s conception of character and fitness ought to be or how it is ultimately applied in any given case. On the one hand, this may be unavoidable due to lawyer regulation being a state-by-state prerogative. On the other hand, it risks creating real problems of venue shopping in which applicants with potentially problematic histories may opt for bar admission in less stringent states. In some states, wrongful conduct or troublesome information disclosed by an applicant might automatically bar the lawyer from admission. In other states a similar troublesome matter might result in only a letter or phone call from an investigator requesting further clarification. And, due to bar reciprocity rules, this has the potential to create back-door admission for states that might otherwise bar an attorney.

An ABA article notes that:

States take different approaches when character and fitness questionnaires flag issues. … For instance, in one case, the Minnesota Supreme Court held that a history of chemical dependency is an invalid basis to deny bar admission, as long as the applicant’s current conduct shows he can act responsibly. On the other hand, in neighboring Wisconsin, the Wisconsin Supreme Court denied bar admission based on a history of mental illness and substance abuse, despite evidence that the applicant was currently fit to practice.

While these jurisdictional conflicts may be unavoidable due to state-by-state bar regulations, it nevertheless illustrates the difficulties in regulating a concept as amorphous as character and fitness in any uniform manner. And, if the goal is public protection, the lack of transparency, consistency, and uniformity is hardly an optimal outcome.

Underlying purpose. Finally, and perhaps on the broadest level, there is a tension around whether the character and fitness requirement as conceived accomplishes its goal of ensuring that the public has access to qualified, trustworthy legal professionals.

In 2018, 13 states, including Washington D.C., did not publish their codified standards of review with respect to character and fitness requirements.

On the one hand, only a small percentage of people are in fact barred from entry to the legal bar on character and fitness grounds—despite the proliferation of forms and the increasingly intrusive nature of the process. It is true that the requirement may have a deterring effect in preventing individuals who suspect that they might not pass from even applying. However, on a deeper level, research shows that even of those who do apply, character and fitness criteria is a poor predictor of bad behavior down the road—a problem of prediction. As Wellington says, “If you look at the small amount of data that’s out there, what we are doing isn’t predicting bad behavior or identifying the people who are going to be in trouble down the road.”

To give a concrete example, a 2013 report commissioned by the Law School Admission Counsel used information from the admissions files of lawyers admitted to the Connecticut State Bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. The report did find that many answers on the bar admission forms were statistically associated with an elevated risk of future discipline—including gender, law school grades, law school prestige, delinquent credit accounts, number of traffic violations, amount of student loan debt, having been a party to civil litigation (excluding divorce), and having been diagnosed with or treated for a psychological disorder. But the report also concluded that such variables “nevertheless make very poor predictors of subsequent misconduct.” It goes on:

Thus, even if some variable (e.g., having defaulted on a student loan) doubles the likelihood of subsequent disciplinary action—a very strong effect—the probability of subsequent discipline for someone with a student loan default is still only 5%. It seems highly unlikely that any regulator would be comfortable denying admission to an applicant who had only a 5% chance of subsequent discipline. Put differently, even knowing that an applicant has a substantially elevated risk of future discipline is probably not sufficient to justify some kind of corrective or preventative action, given the low baseline risk.

Moreover, research suggests that if keeping out “bad actors” in the name of public protection is the goal, decisions based on highly subjective human judgments, such as by a board of examiners or even judges, are often less reliable as predictors of future behavior than those based on algorithmic models. Indeed, the use of a public safety assessment tool—an algorithmic tool that provides a score based on an assessment of a defendant’s potential to fail to appear for court and/or commit a new (possibly violent) crime—has been found to be more determinative of a defendant’s bail risk than simply a judge’s discretion. (For more on the use of predictive tools, see the Practice article “Judging from Empirical Research.”) Could a similarly designed tool provide a better measure of character and fitness as well as help standardize decision making with respect to determinations?

Finally, if the character and fitness requirement is about public protection, public opinion data shows that, at best, that message is not reaching the public and, at worst, is simply not occurring. For more than 40 years, Gallup has surveyed a representative sample of the U.S. population asking: “Please tell me how you would rate the honesty and ethical standards of people in these different fields—very high, high, average, low or very low?” As the chart below illustrates, in 2017, only 18 percent responded that they viewed the honesty and ethical standards of lawyers as either high or very high. Indeed, this percentage has not risen above 20 percent for nearly 20 years—and has never gone above 30 percent. While many factors probably contribute to the public perception of lawyers, to the extent that the character and fitness requirement is linked to a prospective lawyer’s honesty and ethical standards, this data provides substantial long-term evidence about the efficacy of the requirement.

Please tell me how you would rate the honesty and ethical standards of people in these different fields—very high, high, average, low or very low?” As the chart below illustrates, in 2017, only 18 percent responded that they viewed the honesty and ethical standards of lawyers as either high or very high. Indeed, this percentage has not risen above 20 percent for nearly 20 years—and has never gone above 30 percent.

Putting all of this together, if the character and fitness requirement is not predictive of future behavior and is not being translated into public trust in lawyers, this raises the very urgent question: Why have it at all?

What does the future hold?

In 1996, 16-year-old Reginald Dwayne Betts was sentenced by a Virginia court to nine years in prison for carjacking a person at gunpoint. In July 2017, 21 years later, Betts sat for and passed the Connecticut State Bar Exam after graduating from Yale Law School. A month later, the Connecticut State Bar Examination Committee challenged Betts’s admission on character and fitness grounds. Following a series of national newspaper articles advocating for his admission, at a hearing in September 2017 the Connecticut State Bar approved Betts’s admission (see “Crime and Punishment and Admission to the Bar”).

If you look at the data that’s out there, what we are doing isn’t predicting bad behavior or identifying the people who are going to be in trouble down the road.

Marilyn Wellington

In November 2017 the Washington Supreme Court ruled that Tara Simmons, a 2017 law school graduate, dean’s medal winner, and Skadden fellow who also had a history of addiction and prior theft and drug convictions, could sit for the state bar. The holding reversed an earlier 6–3 finding by the Washington State Bar Association Character and Fitness Board that said she was ineligible due to character and fitness issues.

Simmons was represented by Shon Hopwood, a Georgetown University Law professor who himself had a criminal history before successfully being admitted to the bar in 2015 (see “Against the Odds”).

The recent cases of Betts, Simmons, and Hopwood are only the most recent examples of the profession’s continued usage of, but also difficulties with, the character and fitness qualification. Perhaps the character and fitness standard, both as an overall deterrent as well as a vetting tool, is keeping some bad lawyers out. But, given the lack of clarity, transparency, consistency, and uniformity, and debates over its underlying purpose, there is at the very least cause for examining its efficacy and whether there might be different, more effective paths going forward.

Derek Davis was previously the executive director of the Harvard Law School Center on the Legal Profession.