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The Other Bar Hurdle: the Character and Fitness Requirement

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Ethics Webinar - Character and Fitness

Many non-lawyers don’t know that the bar admission process requires new lawyers to pass a character and fitness test before they can practice law and to adhere to high professional standards once admitted. In theory, the character and fitness requirement protects the public from individuals whose past conduct shows they will not be scrupulous lawyers. It’s also intended to protect the legal profession’s reputation.

When you apply for bar admission, you will be asked to complete a character and fitness questionnaire, which will ask for a full report of even minor incidents from your past. And reports of past incidents may lead to further inquiry.

But don’t panic if you have something to report. While it’s rare for a bar admissions board to deny admission based on character and fitness concerns, it does happen. More commonly, a bar admissions board conducts a time-consuming investigation, which may significantly delay licensing and require an applicant to hire a lawyer to represent her in possible hearings. If you are candid during the character and fitness process, can show that you have accepted responsibility for your actions, and have no immediate issues pending, then past missteps should not be a barrier to admission.



Character and Fitness Screening Process

Every US jurisdiction requires bar applicants to complete a character and fitness questionnaire in some form. Usually, the questionnaire asks about past criminal convictions or civil violations, academic or employment misconduct, compliance with court orders, financial irregularities, mental health or substance abuse issues, and disciplinary actions in other professional contexts.

The applicant has the burden to prove good moral character. Accordingly, as part of the initial process, many jurisdictions require applicants to submit affidavits of good character. It’s common practice for law professors to provide these affidavits for students they have worked with. Some jurisdictions also require legal employment affidavits for every relevant position an applicant has held. The bar admissions board then solicits information from previous employers regarding character and fitness.

Law schools are also asked to provide information about graduates’ character and fitness as part of the bar admission process. In addition to documenting that you graduated, your law school must certify that they have no reason to believe you lack the requisite character and fitness to practice law. If your law school record includes any evidence of misconduct, including disclosures you made during the law school admission process, your school must report it to the board.

The character and fitness screening process begins at different times in different states. Some states, like Illinois, Texas, and Ohio, require law students to register with the board of bar examiners in their first or second year so they can begin the screening process right away. In theory, this provides more certainty to students, before they invest time and money in law school, and more investigation time for the board. Other states, like New York, don’t begin the character and fitness inquiry until after the applicant takes the bar exam. In most states, the character and fitness screening begins when the applicant signs up to take the bar exam, usually at the end of law school

Further Investigation

If the character and fitness questionnaire raises concerns about the applicant’s character, the bar admissions board may decide to conduct a more in-depth investigation. Usually, this is an interview or hearing, during which the applicant can produce evidence demonstrating current good character. According to the National Conference of Bar Examiners (NCBE), certain types of reported conduct are likely to trigger further investigation, including unlawful conduct, academic misconduct, neglect of financial responsibilities, employment misconduct, and violations of court orders. Evidence of mental or emotional instability and evidence of substance abuse issues may also trigger an investigation.

This list of investigation triggers may cause concern for some students. But keep in mind that further investigation does not mean you will be denied admission.

The current NCBE application requires applicants to disclose information about a past offense, even if the matter has been dismissed, expunged, or diverted from prosecution in some other way. It does not, however, require disclosure of matters resolved in juvenile court. However, states vary so you should check the requirements in your state if your past includes incidents in these categories.

If your past includes incidents that must be reported, the best course of action is to be completely honest and forthcoming. Bar examiners are far more likely to deny admission because an applicant omits information, fails to correct misinformation, or is dishonest during the screening process than because of the original offense.

Further, if the state admissions board decides to conduct a more in-depth character and fitness investigation, it will probably focus on whether the applicant can show rehabilitation and positive social contributions since the conduct. So if you have something you must report, you can act now to build your case for rehabilitation. For instance, you can volunteer at school and in your community, tend to your financial obligations, be extra scrupulous in your academic conduct, demonstrate professionalism in employment settings, and be candid.

Mental Health and Substance Abuse Concerns

Despite concerns that mental illness and substance abuse questions may violate the Americans with Disabilities Act, most states’ character and fitness questionnaires continue to include them. Some states have narrowed their questions to address specific time periods (e.g., the past three to five years, or particularly severe psychiatric disorders, such as bipolar disorder or schizophrenia). Others may ask only about current conditions that potentially impair the applicant’s ability to practice.

States take different approaches when character and fitness questionnaires flag issues in this area. For instance, in one case, the Minnesota Supreme Court held that a history of chemical dependency is an invalid basis to deny bar admission, as long as the applicant’s current conduct shows he can act responsibly. On the other hand, in neighboring Wisconsin, the Wisconsin Supreme Court denied bar admission based on a history of mental illness and substance abuse, despite evidence that the applicant was currently fit to practice.

Knowing that past mental health and substance abuse issues must be reported will undoubtedly cause some law students special concern. And, unfortunately, research suggests that future bar applicants may be less likely to seek help when they know they will be required to report treatment during the character and fitness screening process.

But don’t fall into this trap. If you struggle with mental illness or substance abuse, seeking treatment is the most important action you can take to ensure your future career. Untreated issues are the roadblock that may interfere with your ability to practice law responsibly. If you need help, get it now so you do not find yourself in a situation that threatens your career.

Further, in recent years, some states have introduced conditional admissions programs for applicants whose character and fitness screening raises mental health or substance abuse concerns. According to the NCBE, in 2013, 23 states provided for conditional admission of applicants with substance abuse or mental disability issues, in certain cases. These programs allow the admitting authority to attach conditions to certain candidates’ bar admission, such as attorney supervision, continued sobriety and treatment, supervision by a Lawyers Concerned for Lawyers organization, or drug tests. Consequently, some applicants who might otherwise be denied admission have the opportunity to enter the profession and prove themselves through practice.

The Final Word

Bar admissions boards would love to see all lawyers be upstanding, trusted members of their communities. While that’s probably not an achievable goal, you can do your part by being thorough and candid on the character and fitness questionnaire, thus demonstrating that you are currently poised to be a respected and valuable member of the profession.