Questions about character and fitness are probably illegal, definitely fail to protect the public, but otherwise do a bang-up job!

Generally speaking, the character and fitness process is a good idea. If the goal is to provide the public with lawyers who won’t rip them off, C&F has a better chance of understanding that than any other prong of the bar exam process. Yet in practice character and fitness are both heavy and superficial. Applicants collect utility bills from half-remembered old apartments and then sit down with someone who asks “you’re not going to mix funds, are you?” before putting a literal rubber stamp on the application. The sheer number of terrible people practicing law proves that this process doesn’t quite live up to the promise.

Part of the process may simply be illegal in some states.

New York, for example, asks applicants about arrests and convictions, including sealed and expunged convictions. The New York State Bar has already opined that this question about the character and fitness form “violates laws that prohibit agencies from asking about closed or sealed cases and juvenile records,” according to the New York Times. Adding simple arrests for cases that lead nowhere also flies in the face of the profession’s stated commitment to presumptive innocence. These issues led the New York Legislature to work on rewriting this issue.

While New York doesn’t automatically select an applicant based on a past conviction alone — although some states do — simply asking about completed cases deters applicants. Which leads to a whole host of problems for the profession…

“The fact that we’re asking a question that’s illegal should be enough,” said T. Andrew Brown, past president of the New York State Bar Association. “But if you’re a profession that already has such a disturbing underrepresentation of people of color, why would you put another obstacle in the way?”

Brown is mainly commenting on the fact that applicants of color are more likely to have these longstanding inequities on their records—a factor with more problems than we need to address here—but it’s complicated by the fact that New York is not an automatic applicant-blocking, inviting of new vectors of bias for reviewers to write off a white teenager’s “youthful indiscretion” while expressing serious concern about a two-decade-old shoplifting charge against a black child.

The only defense against keeping the antiquated and possibly illegal system focuses on the low conviction rates for sexual and domestic violence, arguing that arrest records are important in catching dangerous actors who routinely avoid conviction. Which is fair, except there’s not much to suggest that asking about these things is successfully screening people out right now. The character and fitness process is hardly equipped for charges like these, which means that in the best case they will be left categorically – to avoid bias – to block pleas from anyone accused but never convicted. False claims of this sort are less common than Fox News would have their fans believe, but not entirely unheard of. Setting up a panel of lawyers without an investigative arm to resolve them seems an impossible order and the risk of error is high.

Others question whether any character and fitness assessment is still necessary. In New York, discipline of the profession can be slow or patchy, and some say holding existing attorneys accountable should be the focus.

Which goes back to the core problem with the whole law licensing issue. The bar exam itself tests knowledge that lawyers don’t even need in a one-time test, and then leaves lawyers to atrophy for decades after walking the velvet rope. And we preemptively put applicants through the ringer and then slow-play attorneys abusing their licenses in real time.

No one wants to send a lawyer out there to screw something up, but the truth is, there’s only so much you can do to prevent bad lawyers and putting a microscope on a conviction the justice system felt obligated to throw out or someone’s inconclusive arrest for detonating a cherry bomb in the school restroom in 8th grade isn’t going to do that job for society.

Licensing should be less about getting in and more about staying in the club.

New York is being forced to stop asking aspiring lawyers about long-ago crimes [NY Times]


headshotJoe Patrice is a senior editor at Above the Law and co-editor of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him Twitter if you’re interested in law, politics and a healthy dose of college sports news. Joe also serves as Managing Director at RPN Executive Search.

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