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Model for Dialogue: Bar Examiners and Law Schools

TO: State Supreme Court Chief Justices,
State Board of Bar Examiners,
Deans of ABA Approved Law Schools

FROM: Bar Admissions Committee, ABA Section of Legal Education
and Admissions to the Bar

DATE: June 1998

RE: A Model for Dialogue: Bar Examiners and Law Schools

We are writing to you as members of the Bar Admissions Committee of the ABA’s Section of Legal Education and Admission to the Bar. The Committee members have discussed the importance of dialogue between law schools and bar admission authorities, particularly with respect to the bar admission authority’s character and fitness review process. All of the parties involved in the admission process—the court, the bar examiners, and the law schools—share the goal of protecting the public while promoting a fair process.

The ABA Bar Admissions Committee has developed this meeting manual—A Model for Dialogue—as a means of promoting better communications among those involved in the bar admissions process.

We hope that the availability of these materials might serve as an incentive for holding a joint meeting of the court, the law school deans, and admission authorities.

Feel free to adapt or modify these materials in any way you see fit to meet your requirements. If you have any comments, questions, or suggestions about the materials, please feel free to contact any of us.


This publication is a result of the hard work and efforts of the Bar Admissions Committee for the ABA Section of Legal Education and Admissions to the Bar. It is intended that this publication will facilitate discussion among bar examiners and law schools.

To order additional copies of this publication please call the ABA Service Center, at (800) 285-2221. You have our permission to republish, but not for profit, all or part of this material, provided reference is made to this publication.

Copyright © 1998 American Bar Association.

This document has not been reviewed or approved by the governing body of any organization, including the ABA House of Delegates, Board of Governors, or the Council for the Section of Legal Education and Admissions to the Bar.  Information expressed in this brochure is not to be deemed to represent the views of the ABA or the Section unless and until adopted pursuant to their By-Laws.

BAR ADMISSION AUTHORITY
AND LAW SCHOOL MEETING MANUAL:
Character and Fitness Issues
TABLE OF CONTENTS


 


MEETING MATERIAL

I
Topics for Joint Meeting of Bar Admission Authority and
Law Schools on Character and Fitness Issues

II
Discussion Hypotheticals for Joint Bar Admission and Law School Meeting
(A through P)




REFERENCE MATERIAL

III
Summaries of Character and Fitness Processes
--Ohio--
--Georgia--


IV
Essential Eligibility Requirements for Practice of Law

V
Statistical Summary of Character and Fitness Determinations

VI
Sample Rosters of Board or Commission Members Responsible for
Character and Fitness for Admission to the Bar


VII
Sample Notices of Denial with Reasons for Denial
--Ohio--
--Georgia--
--Minnesota--



BAR ADMISSIONS COMMITTEE

1997-1998 Bar Admissions Committee Members

I
TOPICS FOR JOINT MEETING
OF BAR ADMISSION AUTHORITY AND
LAW SCHOOLS ON CHARACTER AND FITNESS ISSUES

Attached is a list of thirteen (13) topics which might be used as a basis of discussion for a meeting between law school officials involved in bar admission issues and representatives from the bar admission authority, including members of the high court of the jurisdiction.

These topics were developed by the members of the Bar Admission Committee and are designed to lead to better communication and dialogue discussion between bar admission authorities and the law schools which participate in the process.

1.
What information should the bar admission authority and law schools exchange?

2.What information is in the law school’s file?

3.Do law schools have confidence in the way bar admission authorities will use information provided by the law schools? What does the bar admission authority do with the information?

4.Why don’t the law schools hear back from the bar admission authority regarding applicants about whom the law schools have reported adverse information? When should the bar admission authority give law schools feedback as to the disposition of a particular graduate about whom the law school provided requested information?

5.What is an honor code, and when is it considered to have been violated?

6. Is the law school immune from tort liability when it discloses information about a graduate to the bar admission authority?

7.When is it appropriate, if ever, for law schools to plea bargain with students with regard to what is in the permanent record?

8. Are law professors who are members of the bar under a special obligation to respond to the bar admission authority’s inquiries regarding misconduct if there is a provision in the local disciplinary rules that requires attorneys to reply to valid requests for information from bar admission authorities?

9. Will law schools ever revoke a JD degree if it is determined that the student was not truthful on the law school application or for some other reason?

10.Does a conflict exist between the role a law school plays in counseling law students with substance abuse or mental health problems and the role the law school plays in certifying good character to the bar admission authority?

11.What, if any, responsibility do law schools have to prevent or deter students from defaulting on student loans or from overextending themselves with student loans?

12.Should the bar admission authority publish the names of applicants to the bar and solicit character and fitness information from the bar or the public?

13.Should the law school agree to give the bar admission authority information regarding law suits threatened by students or former students after they have applied to the bar?
II
DISCUSSION HYPOTHETICALS FOR JOINT BAR
FOR JOINT BAR ADMISSION AND LAW SCHOOL MEETING ON CHARACTER AND FITNESS ISSUES

The following hypothetical situations (A through P) were developed to elicit discussion and increase understanding between bar admission authorities and law school officials whose work involves communication about student conduct which may implicate fitness for admission.

Of particular concern is the law school authority’s obligation or interest in reporting certain information to the bar admission authority and the bar admission authority’s obligation to act upon the matters revealed.
A B C D E F G H I J K L M N O P

HYPOTHETICAL A

In his first year in law school, Howard sent a dozen roses to a woman law student whom he knew only from class. The card expressed his love. The woman complained to the assistant dean who asked her what she wanted done with Howard. The woman said, “Tell him to leave me alone.” “I don’t know him and I don’t want to get to know him.” The dean talked to Howard, and conveyed the message.

In his second year a similar incident occurred with another woman law student. The woman complained to the assistant dean who spoke to Howard and told him not to do it again. Later that year a third incident occurred with a third woman. The assistant dean heard about this incident through the grape vine. He did not talk to Howard.

At the beginning of his third year, Howard became upset when he saw another acquaintance, (a female student) and a male student talking. Howard rushed at the male student, knocked him to the ground, bruising him slightly, and embarrassing him and the woman in front of fellow students. Howard then turned to the woman student in a loud voice and said, “You know I have always loved you.” The two students complained to the assistant dean and recommended that Howard go for counseling. They said they would not make an official complaint so long as the dean assured them that Howard would see a counselor. The dean talked to Howard who agreed to go for counseling.

Which of these incidents should be reported to the Bar admission authority in the jurisdiction in which Howard applies for admission?


HYPOTHETICAL B

June is a law student who had two clerk positions while in law school. The first position she quit after working for 5 months. She filed a sexual harassment complaint against the employer. The matter was settled with a payment of $4000 to her and a promise by the employer to attend sensitivity training classes. The second position was with the legal department of a large corporation. After being employed for 7 months, June quit and filed a complaint alleging gender discrimination. June alleged that she had not been given an offer for permanent employment while a male law clerk was offered a permanent position. Although the employer said June’s work was poor compared with the clerk who was hired, the matter was settled when June agreed to accept a payment of $2000 as severance pay. Then June sued her landlord in small claims court alleging that the landlord had failed to properly maintain the residence. The landlord agreed to settle the matter by allowing June to keep her deposit. All three of these matters were discussed openly by June at law school. The assistant dean had heard the stories from several sources.

In her third year in law school, June signed up for a clinical practice course. The professor advised the class that students must make themselves available for clinic work on a schedule to be coordinated by the clinical professor. June informed the professor that she did not intend to schedule her entire life to accommodate the professor. She informed him that she had paid over $500 in tuition for the course and unless the professor agreed to her schedule for clinic time, she would bring suit in small claims court for a refund of $500 alleging breach of contract. The professor complained to the assistant dean but later agreed to allow June to pick the clinic times that would be easiest for her.

What if anything should be told to the bar admissions authority about Jane’s involvement in these matters? The form sent by the bar admission authority asks if the dean has any knowledge of June being involved in litigation or if the dean has any knowledge of character issues which should be considered by the bar admission authority.

HYPOTHETICAL C

You are the dean of a law school. You have the following information about three students:
______________________________________________________________________________
Joan was academically disqualified after her first year of law school, when her grade point average was below the minimum 2.0.
She petitioned for readmission, indicating that she was a recovering alcoholic but was in treatment. After a year off, in which her treatment program was proceeding successfully, she was readmitted. Her second year grades were above a 3.0. During the first semester of her third year, however, she was absent a great deal; her grades dropped, but they remained high enough for her to graduate. During Joan’s third year of law school, you received reports from other students that Joan was drinking heavily.
______________________________________________________________________________
Tom was accused by a professor of plagiarizing substantial portions of his course paper in Federal Courts. The professor demonstrated that large portions of the paper were identical to a published law review note on the topic; Tom did not quote the material or attribute it to the law review note. The professor gave Tom an F in the class on the basis of the plagiarism, but Tom’s overall grades were well above the minimum required for graduation. When you discussed the matter with Tom, he said that he wrote this paper just as he had been writing papers since high school. No disciplinary action was taken against Tom.
______________________________________________________________________________
During his first year of law school, Brad spent a lot of time in the Assistant Dean’s office. He seemed to suffer from the stress of law school even more than most students. His grades for first year were average. During his second year, he seemed more seriously depressed, and his grades declined. You heard from other students that he was having marital problems. One day during the spring semester of his third year, Brad stopped by your office to talk; during that conversation, he made some comments that might be interpreted as suicidal.

Joan, Tom, and Brad have graduated and applied for admission to the bar. What information about them
should the law school provide to the bar admission authority?


HYPOTHETICAL D


What course of action should Law School C take with regard to notifying the bar admission agency under the following circumstances:

1. Law School C learns via the local newspapers that Bradley, a third year student, has been charged with molesting two boys, ages 7 and 9, over a period of months while he served as a volunteer Big Brother.

2.Is the outcome any different if Bradley is convicted of child molesting?

3. Is the outcome any different if sentence is withheld by the court, with the agreement that the charges will be dismissed if Bradley completes a year of psychiatric counseling?

HYPOTHETICAL E

During applicant’s second year of law school he and his wife were indicted in federal court for conspiracy to manufacture LSD. Apparently they were desperate for funds to complete school and rented the kitchen of their apartment to two graduate chemistry students who manufactured and sold the LSD. Among the purchasers was an FBI agent. The house was raided and the paraphernalia for manufacture of the LSD, as well as a small quantity of the drug were found.

The applicant and his wife were not involved in the actual manufacture of the drug, and they agreed to testify against the chemistry students in return for a first offender sentence. They pleaded guilty but adjudication was withheld pending their completion of a period of five year’s supervised probation. The probation was terminated after one year, and no adjudication of guilt was entered. The applicant did not miss any school and will complete his courses on schedule.

While the applicant did not inform the law school of the charge or its disposition, the dean is aware of the charge because it was reported in the newspaper. However, he is not aware of the disposition except for rumors that the applicant “cut a deal” in return for a lightened sentence.

What should the dean report to the bar admissions authority?

HYPOTHETICAL F

During applicant’s time as a student at XX Law School she is orally admonished several times for disobeying the school’s rule forbidding eating in the law library; each time she was admonished, she said that she would not do it again. She told the assistant dean who talked to her that the library staff were jerks and too stupid to do anything but manual labor.

She participated in an extern program for credit and her supervisor where she did the externship rated her performance unsatisfactory and as a result she received no credit for the externship. She called the supervisor and made ethnic slurs and cursed her for her report. She also called the law professor in charge of the externship and cursed her and said that she would get even.

Subsequently, the applicant walked up to a minority student and began a tirade against affirmative action programs and told the student that he was so stupid that the world would be better off if he died. The applicant also told another minority student pretty much the same thing. After this was reported to the dean’s office, the applicant was called in by the assistant dean and told that her conduct was unacceptable and that she should seek counseling. The applicant replied that everyone was out to get her and that counseling hadn’t done any good in the past because she didn’t need it and didn’t need it now.

The assistant dean again advised counseling and said that she would arrange for a confidential session with one of the university counselors, but the applicant refused. The assistant dean did nothing more other than to report all of this to the dean with the statement that she (the assistant dean) thought that the applicant had absolutely no conception that others had feelings and that she thought the applicant would end up in the bar’s discipline system if she was admitted. The assistant dean made some notes of her various conversations with the applicant, but no official discipline was ever imposed, and the applicant’s record reflects none of what went on. The dean is sure in her unscientific way that the applicant is mentally or emotionally unstable or both.

Should she share her concerns with the admissions authority?

HYPOTHETICAL G

During his second year of school the applicant is convicted by the honor court of taking unfair advantage of his fellow classmates by circulating a resume which contains a falsely inflated, grade point average and class standing. He is suspended from school for one term (which is not reflected on his transcript) and is required to write each law firm to which the resume was circulated advising the firm that the resume was false. He does this and sits out the term and then returns to school. He continues his studies in good standing and graduates in due course.

Should this be reported to the admissions authority?

HYPOTHETICAL H

Jackson graduated from Law School B in May 1990 and applied for the July 1990 bar examination.

The bar admission authority determines that Jackson did not disclose her academic dismissal from Law School A to Law School B at the time she filed her law school application or at any time thereafter.

Law School B would not have admitted her had she been truthful on her law school application form.

Had Law School B discovered Jackson’s dishonesty while she was enrolled, she would have been dismissed.


What action on the part of the law school is appropriate when the discovery of Jackson’s lack of candor occurs two weeks after the J.D. was conferred?

HYPOTHETICAL I

Preston plagiarized a paper his last semester of law school. The discovery of the plagiarism occurred following his graduation, when a journal to which the paper was submitted performed a cite check.

When the law school is notified by the journal, should it in turn notify the bar admission authority?


Should the law school allow the student’s grade of A to remain on his transcript?

HYPOTHETICAL J

Vaughan was a poor student at Law School M. She graduates in May 1990 and immediately begins employment in the corporate counsel department of a national insurance company. In late June it comes to the attention of the company that Vaughan’s law school transcript is a forgery and the company fires Vaughan and notifies Law School M of the fraud.

What should Law School M do vis a vis Vaughan, vis a vis the bar admission authority?

HYPOTHETICAL K

The bar admission authority receives three applications for the bar examination, and learns that all three applicants were involved in similar instances of academic dishonesty (such as cheating on a test) during law school at three different institutions.

Law School A suspended its student for one year.

Law School B gave its student an F in the course.

Law School C required the student to perform 100 hours of community service, after which the dean agreed not to disclose the cheating incident to the bar admission authority.

Should the differing dispositions affect the weight accorded to the offense by the bar admission authority?


Are any of the law schools obligated to report the underlying cheating incident? If not, what factors would change that?

HYPOTHETICAL L

During his second year in law school, Joe Student was an officer of the Student Bar Association. Under the policies of the school, this office entitled Joe to a telephone credit card issued in the name of the university. Joe had a girlfriend some thousand miles distant from the law school to whom he enjoyed talking on the telephone. By the end of the semester, Joe had run up $2,643.00 in unauthorized telephone calls on the university credit card.

At the start of his third year in law school, the Honor Court found Joe guilty of misuse of the credit card. As a sanction, three hours were subtracted from his total credits and he was required to reimburse the university. By the end of his third year, Joe had reimbursed the university for the improper charges and had accumulated sufficient hours to graduate. Joe then made application to the bar admission authority which, in the course of processing his application, sent a character inquiry to the dean of his law school. The dean has personal knowledge of the incident described above and her file contains a copy of the Honor Court decision.

How should the dean respond to the bar admission authority’s inquiry? How should the bar admission authority resolve the question about Joe’s character?

HYPOTHETICAL M

Mary Student is convicted by the Honor Court of improper collaboration with another student in the preparation and execution of a major writing requirement. Mary’s defense before the Honor Court was that she, in good faith, believed that collaboration was authorized and encouraged by the professor who made the writing assignment. The professor denies that collaboration was authorized. However, several other students from the class testified before the Honor Court that they also believed collaboration was appropriate under the professor’s guidelines. Mary was convicted by a divided vote of the Honor Court. Her punishment was an F in the professor’s course and suspension from law school for one semester.

Mary has now finished law school, received her J.D., and made application to the bar admission authority for permission to take the bar exam. The bar admission authority has required a character report from her law school. In response, the law school has sent a copy of the Honor Court’s written decision. Mary appears at a character hearing before the bar admission authority represented by a faculty member who was a member of the Honor Court which convicted her but who himself had voted for her acquittal.

Discuss the law school’s action in this case. What decision should the bar admission authority make
about Mary’s character?

HYPOTHETICAL N


Ginger is a third-year law student. Although her LSAT score predicted that she would do well in law studies, she has proven to be an indifferent student. She claims that her mediocre grades are a result of a conspiracy by the faculty because she challenges their political beliefs in the classroom. On three different occasions she has sued the law school claiming that the grade she received in a particular class was less than what she had actually achieved on her examination. In each of these suits she acted pro per and each was ultimately dismissed by the court. She has also filed numerous law suits against her landlord and various creditors. All were filed pro per
and all were resolved against her, most by dismissal and a couple by summary judgment.

Ginger’s teachers have reported her classroom behavior as being disruptive and her responses to questions as being often completely unrelated to the topic under discussion. In addition, students have complained to the assistant dean that Ginger intentionally misplaces library and other class research materials to keep them to herself. Both the assistant dean and the dean have spoken to Ginger about her behavior, and she told them that she was just following instructions that came from electronic devices such as radios and tape recorders. She wasn’t sure who was giving the instructions, but she thought they came from dogs. One of Ginger’s law teachers has an advanced degree in psychology in addition to her law degree, and the instructor has told the dean that she thought that Ginger was psychotic and should never be licensed to practice law. To the best of the dean’s knowledge, Ginger has never been professionally diagnosed as having any sort of mental disorder.

Ginger has applied for admission to the bar and, in the processing of her application, the bar admission authority has sent an inquiry to the law school which asks, among other things, for a general evaluation of the applicant’s character and fitness to be licensed as an attorney and, specifically, if the dean (to whom the inquiry was addressed) knows of anything that would make licensure inappropriate.

Should the dean report what the faculty and students have reported to her?
Based on the information about Ginger available to the dean, is Ginger fit or unfit to practice law?
Should mental and emotional stability be considered in the licensing process?
Under the terms of the Americans with Disabilities Act, may they be considered?

HYPOTHETICAL O

Michael is a third-year law student. Prior to law school, he was in the military service for several years before being involuntarily separated because of defense cutbacks. He received an honorable discharge and is receiving veteran’s benefits while attending law school. While in the service Michael became addicted to alcohol, but he joined AA prior to his discharge. He no longer attends AA meetings because he is uncomfortable with what he considers AA’s religious overtones, but he has been active in the law school community speaking about the danger of alcohol and drugs, especially to those in stressful situations.

While at a non-law school social function, the dean ran into Michael and noticed that he had a cocktail in his hand. The dean was surprised but didn’t think too much about it until it became obvious during their conversation that Michael was drunk. Michael volunteered that he had started drinking again but he said that he was keeping it under control and that it was not affecting his studies or his part-time employment with a local law firm. The dean asked how he could continue to speak about the dangers of alcohol when he was drinking, and Michael responded by saying that since he was so well known as a speaker about alcoholism, he couldn’t just stop talking about the disease without signaling that he had lapsed back to active alcoholism, which he did not think was the case.

A couple of days later Michael’s employer called the dean to ask if anything was going on at the law school that would have caused Michael to miss the last three days of work. The dean said she wasn’t sure about Michael’s class assignments but they might have been heavy in the last week or so, and she would leave a note for Michael to call the employer. After hanging up, the dean checked with Michael’s three professors; two said that there had been a noticeable falling off in class performance but they didn’t know why, and one said that he couldn’t see any difference in class performance.

Following Michael’s application for admission to practice law, the bar admission authority sent a confidential background inquiry addressed to the law school, which found its way to the dean’s desk. The inquiry asks specifically whether the completor of the form has any reason to believe that for character and fitness reasons, Michael should not be licensed to practice law.

How should the dean respond? How should the dean respond if the form had asked if the completor had any reason to believe that the applicant was actively addicted to the use of alcohol or mind altering substances? Would the response be different in either case if Michael had come to the dean’s office and sought counseling about the effects of his drinking?

HYPOTHETICAL P

Frank is in his final year of law studies. Under a student practice rule, he has been certified to appear in court when under the direct supervision of a lawyer. In addition to taking law school courses, Frank works part-time for a sole practitioner as a paralegal/law clerk/secretary. He has appeared in court with his employer, who has introduced him as “my associate.”

Recently the dean’s secretary received a call complaining about one “of your lawyers.” The caller said that he had gone to the practitioner’s office and talked to a lawyer named Frank. The caller said that he then retained Frank to file an action against a supermarket in a slip-and-fall case. According to the caller Frank had taken a retainer but did not file the case and now the statute of limitations has expired. The caller was informed that the law school had no lawyers who practiced law other than clinical teachers and that Frank was not one of them. The caller grumbled and hung up.

The substance of the call was reported to the dean, who then called Frank’s employer and related the story told to the law school. The employer said he would look into it and call the dean back. When he did so, he told the dean that although he had referred to Frank as his associate, he did not mean that Frank was a lawyer, but that he intended to convey that Frank was his assistant. The practitioner confronted Frank with the allegations, and Frank reported to him that he had received a retainer and had deposited it into the practitioner’s trust account. In the rush of things Frank had forgotten about it, and that is why he had not reported the retainer or the client or case.

The practitioner also told the dean that he had discovered that Frank had been telling persons calling and coming into the office that he was a lawyer and had a business card printed which clearly implied that he was a lawyer. Frank told his employer he had the cards printed up in anticipation of graduation and passing the bar examination. The practitioner fired Frank but told the dean that he would not report the matter to the bar admission authority when Frank applied for admission. Subsequently, the client filed a malpractice action against both Frank and the practitioner, and that case is pending. The dean is aware that the case was filed but does not know its current status.

Should the dean report Frank’s conduct to the bar admission authority? Is there anything to report? Should the dean report Frank’s conduct to the agency that authorized his limited right to appear in court?

Would your responses by any different had Frank been a participant in an externship
or in-house clinical program?
TOP  II
III
SUMMARIES OF CHARACTER AND FITNESS PROCESSES
SUMMARIES OF CHARACTER AND FITNESS PROCESSES

Many jurisdictions prepare a document for public distribution which describes the character and fitness investigation process. Such documents promote a better understanding of the investigation process, as well as provide a means of improving dialogue among law schools, bar admission authorities and law students.

Attached are examples of how two jurisdictions—Ohio and Georgia—have chosen to summarize their character and fitness process for the benefit of applicants and others.
Go To Georgia Process

Summary of Character and Fitness

Process in Ohio
Admissions Authority
General Admission Requirements
Importance of Character/Fitness Approval
Application Process
Character and Fitness Review Process
Sua Sponte Investigations
Standard for Determining Character/Fitness
Factors in Making Determinations
Significance of Prior Conduct
Factors that May Not be Considered
Burden of Proof
Most Common Reasons for Denial
Confidentiality

Admissions Authority

The Ohio Constitution grants the Supreme court of Ohio exclusive jurisdiction to regulate admission to the practice of law in Ohio. Pursuant to this grant of authority, the court has promulgated Rule I of the Rules for the Government of the Bar, “Admission to the Practice of Law.” This rule outlines the requirements for admission and the procedure for seeking admission.

General Admission Requirements

To be admitted to the practice of law in Ohio, an applicant must:

1.Be at least 21 years old;
2. Have a bachelor’s degree from an accredited college or university;
3.Have a law degree from an ABA approved law school;
4.Be approved as to character, fitness, and moral qualifications;
5. Pass the Ohio bar examination;
6. Pass the Multistate Professional Responsibility Examination; and
7. Take an oath of office.

Importance of Character and Fitness Approval

Approval of an applicant’s character and fitness is one of the most important components of the admissions process.
No one may take the Ohio bar examination without first receiving character and fitness approval. The Supreme Court
does not waive this requirement.

Application Process


Applying for admission in Ohio is a two-step process. First, in the second year of law school, an applicant must file an Application to Register as a Candidate for Admission (Application to Register). This is a preliminary application which includes a character questionnaire providing background information regarding the applicant. An Application to Register triggers an investigation of the applicant’s character, fitness, and moral qualifications to practice.

Second, in the third year of law school, the applicant must file an Application to Take the Bar Examination (Exam Application). The exam application signals the applicant’s intent to sit for a particular bar exam. It also provides updated character and fitness information covering the period of time following the filing of an Application to Register.

Character and Fitness Review Process

Upon its receipt in the Admissions Office, a completed Application to Register is sent to the National Conference of Bar Examiners (NCBE) in Chicago. The NCBE verifies background information provided in the application, contacts the applicant’s references, conducts police checks, provides additional background investigation, and issues a report.

The Application to Register and the NCBE report are then sent to and reviewed by the admissions committee of a local bar association. At least two members of the admissions committee conduct a personal interview of the applicant. the admissions committee may conduct additional investigation before making a recommendation regarding the applicant’s character and fitness.

If an admissions committee recommends that an applicant not be approved or be approved with qualifications, the applicant may appeal to the Board of Commissioners on Character and Fitness (Board), which consists of 12 attorneys appointed by the Court (one from each appellate district) to oversee character and fitness matters. If the applicant decides not to appeal an adverse Admissions Committee recommendation, the application is considered withdrawn. If the applicant files an appeal with the Board, a three-member panel is appointed to hold a non-adversarial, de novo hearing. The applicant, the applicant’s attorney, if any, and the Admissions committee participate as parties to the hearing.

After a hearing, the full Board votes on whether to approve the applicant. The Board may either approve the applicant or recommend disapproval with or without an opportunity to reapply. If the Board recommends the applicant not be approved, the applicant is entitled to an automatic review on the record before the Supreme Court. The Court makes the ultimate decision regarding whether an applicant will be disapproved on character and fitness grounds.

Sua Sponte Investigations

The Board has authority to conduct character and fitness investigations sua sponte. Under this authority, the Board sometimes determines that a hearing should be held even though an Admissions Committee has recommended approval of an applicant. This might happen, for example, when it appears that the Admissions Committee did not thoroughly investigate adverse information regarding an applicant, due to a lack of Admissions Committee resources, unavailability of information to the Admissions Committee, or failure of the applicant to report the information in a timely manner.

Standard for Determining Character and Fitness

An applicant may be approved for admission if the applicant’s record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them and demonstrates that the applicant satisfies the essential eligibility requirements for the practice of law (attached) as defined by the Board. A record manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant may constitute a basis for disapproval of the applicant.

Factors Considered in Making Character and Fitness Determinations

Before making a recommendation about an applicant’s character, fitness, and moral qualifications
an admissions committee or the Board considers the following factors:

1.commission or conviction of a crime;
2.evidence of an existing and untreated chemical (drug or alcohol) dependency;
3.commission of an act constituting the unauthorized practice of law;
4.violation of the honor code of the applicant’s law school or any other academic misconduct;
5.evidence of a mental or psychological disorder that in any affects or, if untreated, could affect the applicant’s ability to practicelaw in a competent and professional manner;
6.a pattern of disregard of the laws of Ohio, another state, or the United States;
7.failure to provide complete and accurate information concerning the applicant’s past;
8.false statements, including omissions;
9. acts involving dishonesty, fraud, deceit, or misrepresentation;
10.abuse of legal process;
11.neglect of financial responsibilities;
12.neglect of professional obligations;
13.violation of an order of a court;
14.denial of admission to the bar in another jurisdiction on character and fitness grounds; and
15.disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.

Weight and Significance Given to Prior Conduct


The review of an applicant focuses on the applicant’s present character, fitness, and moral qualifications. The following factors are considered in assigning weight and significance to an applicant’s prior conduct:

1.age of the applicant at the time of the conduct;
2.recency of the conduct;
3.reliability of the information concerning the conduct;
4.seriousness of the conduct;
5.factors underlying the conduct;
6.cumulative effect of the conduct;
7.evidence of rehabilitation;
8.positive social contributions of the applicant since the conduct;
9.candor of the applicant in the admissions process; and
10.materiality of any omissions or misrepresentations.

Factors that May Not be Considered

In making a character and fitness determination, the admissions committee or the Board may not consider factors that do not directly bear a reasonable relationship to the practice of law. These impermissible factors include, but are not limited to, the following:

1. age;
2. sex;
3. race;
4. color;
5. national origin;
6. religion;
7. disability, provided that the applicant, though disabled, is able to satisfy the
essential eligibility requirements for the practice of law.

Burden of Proof

The applicant has the burden to prove by clear and convincing evidence that the applicant possesses the requisite character, fitness, and moral qualifications for admission. An applicant’s failure to provide requested information, including information regarding expungements and juvenile court proceedings (see In re Application of Watson, 31 Ohio St. 3d 220, at 221), or otherwise to cooperate in the proceedings before an admissions committee or the Board may be grounds for a recommendation of disapproval.

Most Common Reasons for Denial

The initial reasons that an Admissions Committee disapproves or conducts additional character and fitness investigation of an applicant might relate to any of a number of issues regarding the applicant’s background, including, for example, a criminal record, a record of financial irresponsibility, or an untreated alcohol problem. However, the most common reason the Court has disapproved applicants on character and fitness grounds has been based on the applicants’ behavior during the character and fitness review process. The vast majority of applicants who have been disapproved by the Court were disapproved for failure to disclose relevant information, either on their applications or during their character and fitness investigations; giving false information or misrepresenting the facts; or other dishonesty or lack of candor during the character and fitness review process.

Confidentiality

Under the admissions rule, all information, proceedings, and documents relating to the character and fitness investigation of an applicant are considered confidential, with limited exceptions. Disclosure of character and fitness information is permitted:

1. to further any character and fitness investigation of the applicant;
2.in connection with post-admission investigations of the applicant under the Court’s attorney disciplinary rule; and
3.pursuant to a written release of the applicant in connection with the applicant’s application
for admission in another jurisdiction.


An applicant’s character and fitness information generally becomes public information for those few applicants whose applications reach the Supreme Court level for a character and fitness determination. When the Board votes to disapprove an applicant on character and fitness grounds, it prepares a report to the Court, with findings of fact and its recommendation of disapproval. This report is filed with the Clerk of the Court and is considered public. The Board’s record of the proceedings is also filed with the Clerk, but it is filed under seal and remains under seal for a period of 60 days. At the end of this time frame, the record generally becomes public as well. However, in certain cases there may be circumstances that weigh against releasing all of the character and fitness information in the applicant’s record (e.g., if the case includes sensitive medical information about the applicant or private matters involving a non-applicant). Therefore, during the 60-day time frame, the Court, either on motion of the applicant or sua sponte, may order that the entire record or a portion of the record remain confidential and under seal.
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GEORGIA POLICY STATEMENT OF THE BOARD
TO DETERMINE FITNESS OF BAR APPLICANTS
REGARDING CHARACTER AND FITNESS REVIEWS
Unlawful Conduct
Making a False Statement
Neglect of Financial Responsibilities
Mental or Emotional Instability
Drug or Alcohol Dependency
Questions


The Supreme Court of Georgia has delegated to the Board to Determine Fitness of Bar Applicants the responsibility of deciding whether applicants for admission to practice law possess the integrity and character requisite to be members of the Bar of Georgia. 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 clients may reasonably place in their attorneys.

In order to be certified for fitness, the Board requires that an applicant to the bar be one whose record of conduct justifies the trust of clients, adversaries, courts and others. The hallmark of such a person is honesty, especially in connection with the application for admission to the bar. Persons with a record showing a deficiency in honesty, trustworthiness, diligence, or reliability might not be recommended by the Fitness Board to the Supreme Court for admission. The burden is on the applicant to establish and document his or her fitness for admission.

The Board will conduct a thorough investigation of each applicant, using as a basis for the investigation the Fitness Application submitted to the Office of Bar Admissions by the applicant. There is conduct that the Board may consider the basis for further inquiry. This conduct includes, but is not limited to:

- unlawful conduct
- academic misconduct, including plagiarism
- making of a false statement, including omission of relevant facts in the fitness process
- misconduct in employment
- acts involving dishonesty, fraud, deceit or misrepresentation
- abuse of legal process
- neglect of financial responsibilities, especially failure to repay student loans
- neglect of professional obligations
- violation of an order of a court, especially failure to pay child support
- evidence of mental or emotional instability
- evidence of drug or alcohol dependency
- denial of admission to the bar in another jurisdiction on character and fitness grounds
- disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction


The Fitness Application that each applicant completes inquires about each of the above.

The applicant may be asked to provide facts and explanation, in addition to the questions on the Fitness Application. The Board believes that the questions are clear and direct; but, should an applicant ever have a question about whether a question is applicable, the Board’s recommendation is that the applicant disclose the information sought. In order to verify the accuracy of the information provided in the application, or to obtain additional information, the Board will contact the applicant’s references, employers, colleges and law schools. The Board will contact courts, medical providers, police agencies, credit agencies and creditors as applicable. A failure by the applicant to cooperate in this process could cause a delay or even denial of the applicant’s certification of fitness.

The Board has developed policies and procedures for many of the above-cited examples of
questionable conduct. These include but are not limited to:

Unlawful Conduct:

If an applicant has been convicted of a felony, the Board expects the applicant to seek and obtain a pardon before seeking admission. The Board considers restoration of civil rights to be critical to an applicant’s ability to function fully as an attorney. Obtaining a pardon, however, will not automatically entitle an applicant to admission.

The Board will inquire into all arrests even if no conviction resulted. There are many reasons why arrests do not result in convictions, and many of them have no bearing on guilt or innocence. The Board is required to inquire into all areas of possibly relevant applicant misconduct. The applicant is required to report all incidents, and to provide evidence of rehabilitation and evidence of current good character. The occurrence of an acquittal or dismissal is relevant, but is not dispositive of the issue. This is not to suggest that the Board will assume that any arrest was due to guilty conduct on the part of the applicant. The applicant’s obligation is to be completely forthright regarding all matters about which the Board inquires.

Making a False Statement:


A pattern of dishonesty in dealings with employers, schools and authorities, including the Office of Bar Admissions, is
the most frequent reason for denial of bar applicants. Giving false information on the application or failing to be entirely forthcoming and completely candid in the application process is a serious error which will have negative consequences
for an applicant. The failure to be fully responsive to application questions, or any other lack of candor in the application
process, involves sworn statements made to an agency of the Supreme Court itself; since such dishonesty is both
current and ongoing, the applicant to whom it might be charged will have a difficult time showing that
rehabilitation—which requires more than contrition—has occurred and will be sustained.

Neglect of Financial Responsibilities:

The Fitness Board recognizes that law students sometimes have financial problems associated with the expense of law school, or with ongoing family obligations. The Board also recognizes that mishandling of client funds is a frequent and serious cause for professional discipline. Admission to the bar does not require a perfect credit record. The Board is interested in whether applicants have dealt honestly and responsibly with their creditors, and whether they are doing so at the time of application. Responsible dealings generally include but are not limited to keeping in contact with the creditor, making payment arrangements, and meeting the terms of those arrangements. If the applicant currently has an unsatisfactory credit record, especially unpaid collections, judgments, liens, or charged off accounts, the Board may table the application until the applicant has provided proof of six current consecutive months payments as agreed.

Defaulted student loans and failure to make child support payments are of particular concern to the Board. If an applicant has defaulted student loans, the Board will typically table the application until the applicant has made arrangements with the lender(s) for repayment of the loan(s) and has made six current months consecutive and uninterrupted monthly payments pursuant to the plan agreed to by the lender(s). Any arrearage in child support must be paid before an applicant will be certified by the Board.

The six-month payment arrangement should demonstrate a good faith attempt and a reasonable effort to clear the “charged off” accounts, collection accounts, defaults, liens and judgments entered against an applicant.

Evidence of Mental or Emotional Instability:


Evidence of mental or emotional instability, like evidence of chemical dependency, is one of the factors about which
the Fitness Board must inquire. Board members recognize that the stresses of law school, as well as other life factors,
frequently result in applicants seeking psychiatric or psychological counseling. The Board encourages any applicant
to obtain such counseling or treatment if potential benefits might accrue. The applicant should not allow his or her
future bar application to color that decision. Only severe forms of mental or emotional problems will trigger an in-depth investigation or have an impact on bar admission decisions. Isolated instances of consultation for conditions
associated with emotional stress will not be of serious concern to the Board.

Drug or Alcohol Dependency:


Because evidence of drug or alcohol dependence or abuse is one of the “relevant conduct” factors about which the Board must inquire, the applicant should be prepared to provide treatment records, as well as other records of incidents which were associated with any addictive behavior.

If the applicant has a problem with drugs or alcohol, he or she is strongly encouraged to get the counseling or treatment needed as soon as possible. The applicant’s recognition of the problem and the treatment record will be important evidence of rehabilitation, regardless of the seriousness of any misconduct which may have arisen from the chemical dependency. The Board has the option of asking applicants to obtain a drug or alcohol evaluation from a licensed psychiatrist recommended by the Board.
In reviewing this conduct or any other conduct of concern, the Board will use several factors in assigning weight and significance to that conduct. Among those factors are:

- the applicant’s age at the time of the conduct
- the recency of the conduct
- the reliability of the information concerning the conduct
- the seriousness of the conduct
- the factors underlying the conduct
- the cumulative effect of the conduct
- the evidence of rehabilitation
- the applicant’s positive social contributions since the conduct
- the applicant’s candor in the admissions process
- the materiality of any omissions or misrepresentations

Evidence of rehabilitation is the most critical factor the Board uses to determine whether past problems should lead to denial of admission. The Board’s standard for admission is current good character and fitness. Generally, the Board will assess whether the problems of the past continue and, if they do not, whether the applicant’s life has changed in ways that suggest they are unlikely to recur. In Re: Cason, 249 Ga 806 (1982) provides guidance on the issue of rehabilitation.

Should there be any questions about the application or the Board’s policies, please contact:

The Office of Bar Admissions
P. O. Box 38466
Atlanta, Georgia 30334
404-656-3490

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IV
ESSENTIAL ELIGIBILITY REQUIREMENTS
ESSENTIAL ELIGIBILITY REQUIREMENTS FOR PRACTICE OF LAW

A number of states have developed a statement of essential functions which an attorney must be capable of performing in order to practice law. The attached statement adopted in Ohio is representative of what a number of states have done. MacCrate Task Report concepts, as well as the Code of Recommended Standards for Bar Examiners adopted by the American Bar Association and the National Conference of Bar Examiners form the basis for most essential eligibility requirements.

The Supreme Court of Ohio
DEFINITIONS OF ESSENTIAL ELIGIBILITY REQUIREMENTSFOR THE PRACTICE OF LAW

In fulfilling its obligations for investigating whether an applicant possesses the requisite character, fitness and moral qualifications for admission to the practice of law, the Board of Commissioners on Character and Fitness considers the following to be essential eligibility requirements for the practice of law:

1.

2.

3.

4.


5.

6.

7.

8.

9.

10.



The cognitive capacity to learn, to recall what has been learned, to reason and to analyze;

The ability to communicate clearly with clients, attorneys, courts, and others;

The ability to exercise good judgment in conducting one’s professional business;

The ability to conduct oneself with a high degree of honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations;

The ability to conduct oneself with respect for and in accordance with the law and the Code of Professional Responsibility;

The ability to avoid acts that exhibit disregard for the health, safety and welfare of others;

The ability to conduct oneself diligently and reliably in fulfilling all obligations to clients, attorneys, courts, and others;

The ability to use honesty and good judgment in financial dealings on behalf of oneself, clients, and others;

The ability to comply with deadlines and time constraints; and

The ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.
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V
STATISTICAL SUMMARY OF CHARACTER AND
FITNESS DETERMINATIONS

The number of character and fitness investigations conducted within a jurisdiction as well as the number of matters which are disposed of after evidentiary hearings or after review by the Supreme Court is a subject which is of interest within the legal community.

Jurisdictions which publicize the number of bar admission applications heard and determined are likely to promote a better understanding of the work of the bar admission authority as well as correct rumors and misconceptions about the process.

Attached are examples of how three jurisdictions—Ohio, Georgia and Minnesota—have chosen to publish their character and fitness statistics.

These statistics, along with other published information about the jurisdiction’s character and fitness process, can provide an important base of understanding and starting point for dialogue among persons interested in the bar admission process.
OHIO
CHARACTER AND FITNESS DETERMINATIONS
 
  1993 1994 1995 1996
Applications to Register Filed 1585 1541 1660 1591
Adverse Admissions Committee Recommendations
  11 11 10 10
Approvals with Qualifications 4