Guide: Demystifying the character and fitness requirement and what the bar is really looking for

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HelloYesThisIsDog
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Guide: Demystifying the character and fitness requirement and what the bar is really looking for

Post by HelloYesThisIsDog » Sun Aug 05, 2018 2:00 am

Everyone seems to panic when they learn there is a character and fitness requirement for being licensed as an attorney in every state. This guide is to help calm you down and give you some direction in how to prepare for C&F review. A couple caveats before we dive in:
1. I am a lawyer, but I do not specialize in bar discipline/character and fitness. You should not construe any of this as legal advice. If you have a character and fitness issue that you believe will be a barrier to your admission, you should seek out experienced counsel. They're not hard to find and have a ton of experience appearing before the state bar authority in their respective state. This guide is to help you get started, not to answer all your questions and substitute for the advice of an experienced lawyer in this practice area.
2. Before law school, I worked in a state bar admissions office and helped with character and fitness review in an administrative and occasionally investigative capacity. My experience and knowledge is limited to that perspective, and in particular, my in-depth knowledge of C&F rules is limited to that state. Again, if you think you'll have any problems, get an experienced attorney to at least look over your record and what you have drafted for your application. It will only cost you a few hundred bucks just for that and some basic advice, and it will be worth it.

What is good moral character?

Each state writes out the definition a little differently, but at its core, it means that you demonstrate the qualities of (and/or qualities similar to) honesty, fairness, candor, trustworthiness, integrity, respect for and adherence to the law and judicial process, and respect for the rights of other persons. If you think this is vague, you aren't wrong. But, as Justice Stewart once said (with respect to porn, not character), "I know it when I see it." It becomes pretty apparent to the reviewing staff and the attorney(s) at the bar whether your application presents a real question as to your good moral character.

What are some examples of things that would raise questions about good moral character?
  • Lying on your application: By lying, I don't mean you forgot one speeding ticket from five years ago because your state wipes driving records after 3 years. I mean you forgot your 15 speeding tickets across multiple jurisdictions and even after mandatory traffic school you can't seem to cure your lead foot. Or you omit your deferred prosecution of a previous crime, despite the question asking about any crime you were ever charged or arrested for, regardless of final disposition. Failure to disclose information like this on your application can sometimes be enough to trigger a very invasive C&F investigation, and potentially a full-fledged hearing.
  • Crimes of dishonesty: Theft, burglary, fraud, perjury, embezzlement, false statement, and others I'm surely forgetting. A crime involving some element of deceit is a red flag for the bar, even if it's minor.
  • Certain kinds of non-criminal conduct: Being terminated from a job for cause, bankruptcy (or multiple defaulted debts), plagiarism or other academic discipline in college or law school, other than honorable discharge from the military, discipline in another profession, failure to pay child support, vexatious litigation.
How do I show I have good moral character, despite past problematic conduct?
There are several key ways to show you are rehabilitated and of good moral character.
  • Stay on the straight and narrow: Stop engaging in the problematic conduct, or any other conduct that puts you at odds with the law or basic ethics. If you have one bad act, followed by years of good behavior and a clean record, you will look a lot better than someone who has a recurring problem with adhering to the law. Additionally, don't just have the absence of bad conduct - engage in good conduct! Volunteer, contribute to the community, and be exemplary in all areas of your life: school, career, and community.
  • Complying with your obligations: If you were on probation, you should show you met all the conditions without issue. Ideally, you'll have completed your probationary term (or nearly completed it) prior to applying for admission, which helps with this factor as well as #1. Paying restitution and fines also would be evidence of this.
  • Your attitude, as shown in your application responses, your correspondence with the bar, and in other communications: People underestimate or misjudge this factor severely and it often leads to problems. Common ways a bad "attitude" manifests are: denying, downplaying, or joking about the seriousness of your past acts; getting defensive when the bar asks you questions about your conduct; and refusing to accept responsibility (or show remorse) for your conduct.
What do I do to prepare my application?
  • READ THE BAR'S ADMISSION RULES FOR YOUR STATE. I can't emphasize this enough. Get familiar with the procedures and standards for character and fitness for any state bar you want to apply in. You don't want to be flying blind.
  • Free-ish resources: If any state you have lived in has it available online, search court records for your name, and call the court with any records to see if you can get a copy of the docket sheet or any other details associated with it. Docket sheets are a pretty common request if your application has C&F issues worth investigating - they'll show the final disposition of the matter.
  • Driving record: This is pretty standard - contact the DMV for any state you've lived in and order your driving record.
  • Verify your law school is aware of the conduct you're disclosing to the bar: If you did not list the conduct on your law school application, reach out to your dean of students or whomever is the appropriate authority and set up a meeting to explain. The bar will ask for your law school application and compare it to your bar application. The bar will also ask every applicants' law school if they're aware of any misconduct at all (e.g., academic discipline). If there are discrepancies (i.e., you did not give the full picture of the incident(s) in your law school app), you'll want to explain the reason for this thoroughly in your bar application.
Other tips
  • Don't overthink/underthink your conduct: Applicants understandably have a hard time calibrating what the bar will/will not be concerned with. I wish I had a nickel for every time someone had a meltdown over a speeding ticket they couldn't track down, or when someone was totally shocked their deferred prosecution for an assault charge from a few years ago actually is a problem that will warrant some more investigation. I think the best way to contextualize your particular conduct is to remember the volume of applicants vis-a-vis the bar's resources. Only a small percentage of applicants get an actual hearing where they must defend themselves, and a minority of applicants receive intensive investigative resources. A lot of people are going to get waved through.

    Why? The reasons/combination of reasons are numerous, but remember that patterns of behavior, seriousness of behavior, and the quality of the behavior (i.e., dishonesty) matter, and every bar is going to reflect the social preferences of the state you're in. A deferred prosecution for misdemeanor marijuana possession from 5+ years ago looks different on the West coast than in parts of the East coast. Your handful of speeding tickets probably aren't worth the bar's time to go to ground on, as opposed to someone who has 75 parking tickets, many of which are unpaid.
  • Don't assume you have no chance at all. Your record can be overcome. Seek C&F counsel, and do what you can on your own to right the ship of your life before embarking on your legal career. No one will make guarantees that you can make it through, and I won't here, every situation is different. But you should reflect carefully on what your life has shown so far, talk to your lawyer, and really evaluate whether you can prove there is change.
If you have direct experience with C&F, as an applicant or as a practitioner/bar employee, feel free to post below with suggestions to this guide.

I will tackle fitness in a follow-up post, because it is a bit more complicated and is rife with a lot of myths, some true and some untrue.

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ymmv
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Re: Guide: Demystifying the character and fitness requirement and what the bar is really looking for

Post by ymmv » Mon Aug 13, 2018 4:59 pm

HelloYesThisIsDog wrote:
Sun Aug 05, 2018 2:00 am
Thanks so much for putting this together, Dog! I added it to the main Guides page.

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