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.
|
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.
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|
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.
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| 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.
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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?
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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 |
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.
|
| TOP
III |
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
|
| TOP
III |
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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IV |
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 |
| |
