Against the Odds

Speaker’s Corner From The Practice March/April 2018
Shon Hopwood on reforming the character and fitness requirement

Shon Hopwood, an associate professor of law at Georgetown Law School, recently sat down with David B. Wilkins, faculty director of the Harvard Law School Center on the Legal Profession, for a one-on-one conversation on the character and fitness requirement in the legal profession.

David B. Wilkins: As you know, stories like yours, and those of Reginald Dwayne Betts in Connecticut or Tarra Simmons in Washington, whom I know you’ve been working with, have brought character and fitness debates back in the news. Could you talk a little bit about your story, how it relates to character and fitness, and how you thought about the issue as you were considering applying to law school with a background that might make bar admittance problematic?

Shon Hopwood: You know, at any one time I am advising up to 20 people who are thinking about law school, on their way to law school, in law school, or have recently graduated and are in the process of applying to become licensed lawyers—all people who have prior criminal convictions or addiction issues on their record. And I advise them with the same thought process that I used when I was applying to law school and going through the licensing process with a serious criminal conviction on my record. I tell them to think very carefully about where they apply to law school and where they want to be licensed to practice law, at least initially. When I thought about selecting a law school, I was worried that if I stayed in Nebraska, where my crimes were committed, that there was no way that the Nebraska State Bar would admit me. I choose the University of Washington and the Washington State bar because, unlike a lot of places, the state’s Supreme Court is the final authority on bar admissions. I generally believe that I’d rather have a judge deciding the issue than a bar association. I knew that I would apply for the bar in the state where I went to law school, which would help me downstream. I also knew that if I had enough exposure to people from the law school and the wider Seattle legal community, these people would hopefully be a resource for me when it came time for my bar application. Everything I did in law school, I was thinking ahead to character and fitness issues.

For people with prior convictions or addiction issues on their record, they need to be thinking about the character and fitness test long before they start their first day of law school.

Shon Hopwood, associate professor of law at Georgetown Law School

For instance, as a Gates Scholar, I had the opportunity to do an unpaid internship wherever I wanted. But, unlike my classmates who often took amazing internships all over the world, I stayed in Seattle and applied to work with federal judges because I knew I needed to build connections to the community. Judge John C. Coughenour, a Federal District Court judge in Seattle, hired me. Now, I wanted to see how judges operated and how sentencing worked because I was extremely interested in criminal justice issues, but, in addition to that, I hoped that I would do a good job for Judge Coughenour so that he would see the type of person I was and possibly even write a letter for me when it came time for the character and fitness assessment processes when I graduated. And that all played out. Judge Coughenour wrote a letter for me. My sentencing judge wrote a letter. And I received my law license. That’s not to say it was easy—I had a six-hour hearing before the board. But I was thinking about all this long before I graduated law school. For people with prior convictions or addiction issues on their record, they need to be thinking about the character and fitness test long before they start their first day of law school.

Wilkins: What do you think the purpose of character and fitness should be? Why do we, as a profession, require it? What do you think the legal profession gets right about character and fitness, and what do you think the profession gets wrong about it?

Hopwood: I don’t think we as profession get much right when it comes to character and fitness. The more I study this, the more the whole process feels arbitrary, often because the people who make the decisions at the bar associations are people who don’t have experience with the criminal justice system. They don’t understand things like reentry, rehabilitation, and all of the collateral consequences of coming out of prison. And they don’t understand addiction issues either.

I have worked with enough lawyers, and nothing I’ve seen since I’ve become a practicing lawyer dissuades me from this view that if the goal of character and fitness is to weed out lawyers without integrity, it is not working (for more on character and fitness as a predictor for future bar discipline, see the article “A Higher Bar”). I see lawyers all the time, especially criminal defense lawyers and in the immigration law field, who are deplorable to their clients. They are not diligent. They don’t take the time to be an advocate or a counselor to their client. And their work product is often bad. I just don’t think we have the capacity to determine who is going to be problematic and who is not. So, as a profession, I think that we should spend a lot less time worrying about character and fitness at entry and more time and more resources monitoring the conduct and behavior of practicing lawyers. I realize that it’s much easier to just keep people out at the front end and not have to deal with issues once somebody becomes a lawyer, but that system is not working.

Wilkins: You’re working on a law review piece called “Rehabilitating the Character and Fitness Test.” Can you tell us a little about it?

The more I study this, the more the whole character and fitness process feels arbitrary.

Hopwood: Well, the core of my argument in that paper is that if character and fitness is about public safety, let’s create a process that is geared toward that goal while understanding that not everyone coming into the profession has a perfectly clean record and character is not static. The social science research says that someone who has five years of clean conduct—whether in the context of a criminal issue or an addiction issue—is at very low risk to commit a new crime or to relapse. Because of this, we should not be keeping people out of the bar when they have shown that they have made significant changes in their conduct—and significant changes to their character. This five-year guideline does not mean automatic admittance, but it should help bar associations be more consistent in their policies about whom to admit and when. This is particularly important right now because bar associations are often looking for the unicorn, like me, to admit. But my case should not be the standard for entry into the profession for people with prior convictions. If there was a five-year guideline, it would change bar associations from looking for the unicorn to admit, to looking for the unicorn not to admit. And that small change in focus would allow those communities that are overrepresented in the criminal justice system and underrepresented in the legal profession to be admitted to the profession. There is little doubt in my mind that the legal profession needs the perspective of people who went through struggle and came out the other side a better person.

Wilkins: You recently represented Tarra Simmons. Can you tell our readers a little bit about her case?

Hopwood: Everyone thought her case was a slam dunk. Tarra was in Washington State, the same state that gave me a law license, and we all thought she was a shoo-in because her convictions were not nearly as serious as mine. Whereas mine were all armed bank robberies, hers were theft and mostly crimes related to poverty and drug addiction.

But then, six years ago, she changes everything around. She gets clean. Starts volunteering. And then she decides to go to law school, where she graduates with honors. She is awarded the Dean’s Award for the best law school student and wins the Graduating Student Award for the entire Seattle University, not just the law school. And then she is the first formally incarcerated person, the first Seattle University graduate, and the first Washington resident to receive a prestigious Skadden Fellowship. When she applies to the Washington State Bar, she has three state court judges, the prosecutor of King County, and 50 members of the bar who write letters of recommendation. Yet the bar denies her 6-3.

Bar associations have gotten progressively more intrusive on character and fitness questions, including on mental health history, drug addiction, and alcoholism.

We appealed the bar’s recommendation. And for the first time in 37 years, the Washington State Supreme Court grants full review and briefing in a character and fitness case. I argued the case this past November. After the argument was over, I drove to the airport and was on the plane when my wife texts me and says, “Tarra just left a message on my phone and says ‘We won.’” And I said, “That’s not possible—we just argued the case!” What we didn’t know was that the Washington Supreme Court decided a few hours after oral arguments to issue a unanimous order saying that Tarra Simmons has the character and fitness necessary to practice law, with a full opinion forthcoming. We still don’t have the opinion, but Tarra took the bar exam two weeks ago and she ought to be a lawyer in the next few months.

Wilkins: Congratulations, Shon. It’s just a stunning story in so many ways. We’ve been talking about the criminal justice system, but if you look at these character and fitness review statements, across the country they ask for much, much more than even criminal justice matters. As you may know, in Florida, if you get flagged for certain things, in some cases you now have to turn over all of your social media passwords and they do a scrubbing of your accounts. What do you make of these trends?

Hopwood: There is no doubt that bar associations have gotten progressively more intrusive on character and fitness questions, including on mental health history, drug addiction, and alcoholism. These are all arguably valid things to take into consideration. The problem is, however, the people receiving this information—the character and fitness panel—don’t understand these issues and how they really impact a person, which is critical if you are using them to judge character and fitness.

The Character and Fitness panel didn’t understand, for example, why Tarra had two bankruptcies, both of which followed from her incarceration. They didn’t understand how incarceration leads to all sorts of debts that accrue while a person serves his or her time in custody. They didn’t understand the support network that Tarra created for herself and how that would positively impact her sobriety moving forward.

Wilkins: You have been working with a group of students, including from NYU, Georgetown, Stanford, and other places around the country to change some of these rules. Can you talk a bit about what are you doing?

Hopwood: One of the big rule changes that we are advocating to the American Bar Association is to require some level of training for those who serve on character and fitness boards. We had a heck of a fight with the Washington State Bar Association about what training they provided to their board, and we came to find out they give them just eight pages of material asking them to consider 36 factors and subfactors. But the bar didn’t provide any guidance as to how to weigh the factors. And the bar provided no guidance on issues related to criminal justice system involvement, or on mental health or substance abuse issues.

In addition to not providing much in the way of guidance, the board members are precluded from seeing any prior decisions that the Washington Character and Fitness Board had made. Consequently, all decisions were made in a complete vacuum. The panel members might not even have known that the bar had let me in two years prior to Tarra going through. So there is no use of precedent, and the board is empowered to decide these issues without any training in drug addiction, reentry, or rehabilitation. Context and precedent matter, so I think we need more clarity on those fronts as well.

And there needs to be more certainty in the process. For a person with a prior conviction thinking about attending law school, there is no way for that person to know whether they will meet the character and fitness requirement necessary to obtain a law license. As a result, people who possess real-world experience in the criminal justice system—a perspective sorely needed in the profession—don’t even enroll in law school. Who wants to spend three years and hundreds of thousands of tuition dollars when you have no idea whether you will be allowed to practice law?

There’s so much misinformation, even among lawyers in our own profession, about who can get in and who can’t.

Wilkins: You and I are now in the business of teaching law students. And I bet that we both spend a lot of time counseling people who might want to go to law school. What is it that you think we should be telling people about this process? What is it that we should be telling people about how they should react to it?

Hopwood: To begin, I would say we need better information and data. When I initially started researching this issue, I thought that there would be people out there who could provide advice. I thought maybe admissions officers at law schools would know who has been admitted in the school’s home jurisdiction. But what I found is no one knows anything. No one knows the chances of anyone getting through, because all of these processes happen behind closed doors. There’s no transparency. Courts rarely write opinions on it. The bar just kind of arbitrarily picks and chooses who they want in and who they don’t. And that makes it really difficult to advise people. I mean, one of the reasons I like the five-year guideline is that it provides clarity where right now, there is none. If there was a five-year guideline, you could say, “You know what, if I change my life around and have clean conduct for two years, and then I go to a law school for three years, and I do what I’m supposed to do and I volunteer, at the end of those five years, I’ve got a pretty good chance of getting in.” But right now, no one can tell anyone in any jurisdiction what chance they have of getting through the process if they have any blemish on their record. And that makes giving advice very difficult.

We also need to educate other lawyers about the admissions process. I had more than 300 lawyers tell me, “Shon, you’ll never be able to go to law school, and even if you do graduate from law school, no bar is ever going to let you in.” But these lawyers didn’t know the process and whether jurisdictions had allowed people with felony convictions to become lawyers. There’s so much misinformation, even among lawyers in our own profession, about who can get in and who can’t.

A person with prior convictions or a history of substance disorder must think about these issues when they first decide where to go to law school. Moreover, it’s really important that the first bar—the first jurisdiction—that you apply to says yes. For instance, I am being sworn into the D.C. Bar in April. That will be two jurisdictions that have said yes. And I’m admitted in several federal courts of appeals in the country. So, it would be easier for me now to go back to Nebraska and ask for a law license there because Washington State, Washington, D.C., and others have said yes. So I advise people to go apply for law licenses in jurisdictions that are favorable, like Washington State, New York, California, and Washington, D.C. On the other hand, it’s really hard to get in someplace once you have already been denied elsewhere, even if you go to a place like D.C. If I had been denied by Nebraska and then tried to go to Washington State, then it becomes really difficult because the first jurisdiction that considered my application said no. So I always tell people to go to jurisdictions first that are favorable and get your law license there before you try to go to another state where there’s not an established pattern of letting people in who have prior criminal history or addiction issues.

Wilkins: Shon, this is so thoughtful and so helpful. I’ve never heard anyone speak about this so thoughtfully or eloquently or passionately. And we are all lucky as a profession that we have someone like you among us. So thank you so much for sharing this with our readers.

Shon Hopwood is an associate professor of law at Georgetown Law.

David B. Wilkins is the Lester Kissel Professor of Law, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession at Harvard Law School.