Lines in the Sand
At one time, it was common for applicants seeking admission to the bar to be rejected for lacking the requisite “honest demeanor” or “good moral character,” when their only real flaw was being from minority or immigrant groups, or having unpopular political beliefs.
But in a landmark 1957 decision, the U.S. Supreme Court ruled that a state’s qualifications for bar admission must have some rational connection with the fitness or capacity of applicants to practice law. Schware v. Board of Bar Examiners of New Mexico involved an applicant who was not allowed to take the New Mexico bar exam partly because of allegations that he had once been a member of the Communist Party.
Questions about political affiliation have become a thing of the past, says Lisa G. Lerman, a law professor at the Catholic University of America in Washington, D.C., who has researched bar admissions practices. But character and fitness screenings are still problematic, she says, because the standards are generally so subjective.
“It’s an invitation to make judgments about people that may be affected by stereotypes,” Lerman says.
Character and fitness standards have become far more consistent since 1987, when new criteria were added to the Code of Recommended Standards for Bar Examiners, which serves as the model for bar admissions policies in many states, says Lerman. The code has been adopted by the ABA, the National Conference of Bar Examiners and the Association of American Law Schools.
Under the code, certain types of conduct—including the commission of a crime, drug use, neglect of financial responsibilities, and evidence of mental or emotional instability—“should be treated as cause for further inquiry” by bar admission officials. Other criteria, such as the seriousness of the conduct and when it occurred, evidence of rehabilitation and an applicant’s candor in the admissions process, are supposed to be factored in.
As recently as the mid-1990s, bar admissions applicants were routinely asked open-ended questions about whether they had ever been diagnosed with or treated for mental illness or substance abuse, says Lerman.
Such questions have little, if any, practical value in assessing a candidate’s fitness to practice, says Jon Bauer, a professor at the University of Connecticut School of Law in Hartford. And while they seldom result in denial of bar admission, he says, they can be humiliating, delay the process and deter applicants from getting treatment.
NARROW FOCUS QUESTIONED
Connecticut is bucking the approach that bauer espouses. In March, the state’s bar examining committee amended the admissions application form to ask applicants whether they have been treated for a “major depressive mood disorder” within the past 10 years.
“It makes no sense to ask about depression and not ask about a whole host of physical conditions that affect people in a similar fashion,” Bauer says. (Connecticut bar officials could not be reached for comment.)
There are boundaries even for flexible bar admissions standards. Mississippi, for instance, is the only state that explicitly bars convicted murderers from becoming lawyers, but it’s unlikely a convicted murderer would have much luck in seeking admission to the bar in any state.
In December, the Arizona Supreme Court denied bar admission to James Hamm, who murdered two college students in 1974, but then graduated from law school after leaving prison. In the Matter of Hamm, 123 P.3d 652.
The court didn’t explicitly hold that a convicted murderer could never be admitted to practice, as the state bar, in an amicus brief, had urged.
But it did say an applicant with Hamm’s criminal background must make an “extraordinary” showing of good moral character. Hamm failed to make that showing, stated the court, in part because he did not accept responsibility for the murders, was less than candid during admissions, and did not fulfill or even acknowledge child support obligations.
