School of sharks? Bar fitness requirements of good moral character and the role of law schools

Georgetown Journal of Legal Ethics, The, Spring 2001 by McCulley, Elizabeth Gepford

To adversely affect good moral character and fitness, conviction of a crime charged or a finding of guilt is not necessary. This is particularly important because when assessing good moral character, bar examiners can take an applicant's suspected criminal behavior, or other questionable conduct, into consideration even if charges are dropped.61 To illustrate, in In re McLaughlin, the applicant indicated that a disorderly persons arrest charge had been dropped, stating that the charges related to a peaceful protest.62 Despite the dropped charges, the court still examined the circumstances leading to the arrest.63 As it turned out, the incident was not a peaceful protest, but instead involved abusive and offensive language on the steps of a police department while the applicant was intoxicated on a Sunday morning.64 The court found that the mischaracterization of the incident evidenced a lack of candor, and uphled denial of the applicant's admission to the bar.65

Based on the premise that the practice of law is a privilege, not a right, courts are given broad discretion regarding whether an applicant meets the ethical fitness requirements of the state bar.66 For instance, applicants may not hide behind the shield of the First Amendment regarding questionable speech. Bar commissions can consider an applicant's conduct regarding First Amendment protected speech when assessing his or her character.67 The courts can go behind constitutionally protected speech and consider the nature and context of the speech as well as its ethical reflection on good moral character.68 The purpose of the bar commission is not to prosecute for speech, but to consider "an investigation of the conduct of [an applicant] for the purpose of determining whether he shall be [admitted]."69 Protecting speech under the First Amendment but deeming the speech as adverse to fitness requirements reinforces the notion that the practice of law is a privilege, not a right.

Furthermore, considering other constitutionally protected conduct, the Supreme Court has upheld inquiries into memberships of organizations to overthrow the Government by force or violence.70 The legal profession is dedicated to "peaceful and reasoned settlement of disputes."71 Justifying the consideration of questionable, but constitutional behavior, the Court reasoned that the constitutional oath required for admission to the bar requires the "applicant to swear or affirm that he will support the constitution of the United States."72 The Court said that membership in the organization is not at issue, but the conduct of the applicant relating to the organization may prevent fulfillment of the necessary fitness to practice law requirements.73 As an officer of the court a lawyer must respect the law. Behavior evidencing disrespect for the law adversely affects an applicant's good moral character and fitness.

Candor is paramount to the bar authorities. Refusing to candidly recognize the wrongful nature of past conduct will add to evidence refuting a candidate's good moral character.74 For example, in In re La Tourette, a bar applicant's character and fitness certification was withheld because he failed the state bar examination numerous times, filed suit against the bar examiners, and sued his law school for "its failure of performance."75 He also failed to make adequate efforts to pay $14,000 back child support, disclosed client confidences while working as a law clerk, and filed lawsuits to strike down bar examination requirements and to "restrain the publication" of bar examination results.76 The New Jersey Supreme Court found that the applicant had an "unwillingness to accept any personal responsibility for his difficulties," and engaged in litigation in bad faith.77