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Bar Character Test Seen As Vital Despite Flaws

January 20, 2015

Law360
By Gavin Broady

Questions about whether a history of misbehavior can accurately predict future problems have touched off a debate over whether bar admission character inquiries should be eliminated, but many legal professionals argue that even imperfect fitness standards remain vital for professional self-regulation and protecting public trust.

In a December 2014 Brigham Young University Law Review paper, University of Connecticut Law School professor Leslie C. Levin outlines arguments for revisiting the character and fitness inquiries, which vary from state to state but typically include an examination of academic history, criminal background, mental health and various financial factors.

Though Levin and others suggest there is insufficient evidence to support the idea that character inquiries are effective at rooting out potential problem lawyers, many in the practice see them as an important means of safeguarding the reputation of legal professionals.

“I know the character and fitness requirements are tough and there are problems with its predictive nature, but as lawyers we are entrusted with a lot, and the disciplinary authorities out there are pretty limited in their ability to uncover unethical conduct,” said Michael B. Hayes, a partner with Montgomery McCraken Walker & Rhoads LLP. “That means you’ve got to set the bar for admissions high if you’re going to protect the public and the profession.”

Hayes, who frequently represents bar applicants before the Pennsylvania Board of Law Examiners, says the report itself points to a telling statistic in favor of keeping the inquiries: a 2013 Gallup poll finding that only 20 percent of respondents rate the honesty and trustworthiness of lawyers as “high.”

“We have a reputational problem,” Hayes said. “And if you try to take character and fitness inquiries and dilute them or eliminate them, what’s the practical impact going to be on peoples’ opinions and the regard they hold the profession in?”

Richards Kibbe & Orbe LLP partner Jim Walker added that the test is as important for what it can teach young lawyers as for what it reveals to the bar examiners.

“This is a self-regulating profession, and people should understand that there’s a lot that goes with being licensed to practice – what authority that gives you, and what people you represent are depending on,” Walker said. “It’s not the worst idea to look at it as something that’s not so much about creating a barrier as making sure that part of the process has some meaning, and really making people think about what they’re about to embark on.”

While some legal scholars take issue with the financial elements of the inquiry – particularly where it is seen to potentially disadvantage people from less affluent backgrounds who are more likely to have credit problems or personal bankruptcies – experts say it is not only fair but necessary to ensure that future attorneys are competent when it comes to handling money.

“It’s hard to look at someone you don’t know and try to tell if they meet the character requirements, but you can look at objective things like bankruptcies, credit reports and accumulated debts,” said Beasley Allen partner and former Alabama State Bar President Tom Methvin. “And that’s important because lawyers have to deal with other peoples’ money a lot, and most of the lawyers who get disbarred across the country are those who have gone into a trust account and improperly handled a client’s money.”

The ideal character test is therefore less about determining whether or not a candidate is likely to engage in premeditated theft, and more focused on whether he or she is prone to give in to the opportunities for small ethical lapses that show up frequently over the course of a legal career, according to Walker.

“It should be about looking at indicators of past history,” Walker said. “It might have been something minor, but there are lots of little points in time where decisions can be made to do the wrong thing, to misrepresent something to the court or a client because the story is better. So you make sure you’re admitting people who get the difference between right and wrong.”

Hayes notes that the inquiry into finances is not about screening those who accumulate burdensome debt so much as determining whether a candidate can appropriately manage debt once it has piled up.

“I do think that if a law student has serious financial issues that are unresolved, that is a predictor of reliability,” Hayes said. “I’m not talking about having debts that are accrued. It’s that they haven’t done anything about it, like enter into a debt arrangement or payment plan. If you’re irresponsible with your personal finances, what’re you going to do with somebody else’s?”

The stringency of the character and fitness exam received some particularly bad press in 2011, when law school graduate Hassan Jonathan Griffin was denied his Ohio law license in part because he was carrying $170,000 in accumulated law school debt.

Hayes suggests the Ohio Supreme Court’s much-mocked 2011 decision supporting Griffin’s bar denial over law school debt was less of a Catch-22 absurdity than many portrayed it at the time, as the state high court specifically took issue with his decision not to seek full-time employment in an effort to begin paying down his debt, and instead maintain only part-time work as a public defender.

Hayes noted that the debt question reflects a larger principle underlying the character and fitness inquiry: that it is more about determining present character than punishing past mistakes.

“One thing that gets lost on a lot of people is that these character and fitness boards are looking at your character now, as opposed to your character in the past,” Hayes said. “Everybody makes mistakes in life, and if they’re not terrible mistakes that indicate you’re a serious threat then, in my experience, the character and fitness board is willing to look past those things if the indicators are good.”

The most vital aspect of that equation is candor, Hayes said, noting that a large proportion of the rejections he sees are the result of candidates failing to accurately self-report past problems and either hiding or minimizing prior misconduct.

While opinion on the predictive effectiveness of character inquiries is split, few reasonably believe they will go away entirely. Instead, Levin outlines a range of possible fixes that have been floated for how to better protect the profession from moral lapses.

One of the most contentious of those suggestions is the idea of periodic relicensing – an approach used in Australia, where attorneys are required to reapply for certification to practice every year.

Methvin says that idea is likely to be a nonstarter in the American legal community, in part because it’s already difficult enough to attract qualified attorneys to the profession in a rough job market.

“I am against the idea of periodic relicensing 100 percent,” Methvin said. “If you tell people they have to go to school for seven years, collect $150,000 in debt, and now you’ve got to go through and be relicensed and maybe get kicked out a few years later, that would hurt our ability to keep good lawyers.”

Attorneys who are seen as problematic as a result of the inquiries could also be required to carry additional malpractice insurance, or could be granted admission to the bar on a conditional basis, Levin suggests.

However, the study notes that most attorney malfeasance occurs in middle age, meaning a probationary period would likely run out before attorneys are exposed to the types of situations that might lead to a lapse in judgment.

The character inquiry might therefore come both too early in an attorney’s career and too late, according to Hayes.

“They’re looking at folks’ character and fitness before they’ve encountered the stresses of practice, and not looking at them until they’re done with law school,” Hayes said. “Character and fitness, if you were to do it more fairly, would be done as a prerequisite to law school admission, so you don’t have people going through law school, incurring debt, and being denied entry into the bar.”

Hayes added that character and fitness inquiries are only one aspect of the profession’s self-regulation efforts, and that as a whole the legal community could be doing more to prevent ethical lapses.

“Something we haven’t done a great job on is training folks to better deal with the stressors that cause misconduct,” Hayes said. “Instead of focusing on shutting people out of the profession, why don’t we focus more on supporting our attorneys, and making them more capable of dealing with issues that lead to misconduct: substance abuse, work-life balance, financial management.”

“We have highly stressful jobs, and there are often very strong incentives for lawyers to misrepresent something to protect their client or themselves,” Hayes added. “But that’s poison to the profession.”

–Editing by John Quinn and Emily Kokoll.

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