Facing the Klieg Lights: Understanding the "Good Moral Character"

CLEMENSFINAL.DOC
3/30/2007 12:51:01 PM
2007] THE “GOOD MORAL CHARACTER” EXAMINATION 269
behavior.” 153 Only a few legal harms, notably those in criminal defense,
“are potentially irremediable and may justify regulation.” 154 More
information, not regulation, will solve this information asymmetry. 155 If
public protection were truly important, the bar would release more
information. 156
Critics say that bar regulators have wrongly focused on raising
entry barriers, which actually inflicts more harm by inhibiting
competition and inflating legal service costs. 157 Because of these flaws,
modern bar regulations that ignore informational asymmetry and instead
focus on denying entry cannot be justified as consumer protection. 158
Arguably, these restrictions serve mainly a public relations purpose. 159
It is unclear, however, if the character requirement protects consumers or
is just window-dressing. 160
2. Inadequate Post-Admission Policing
Another view is that bar applicants deserve scrutiny because of the
bar’s self-regulating nature. 161 Lawyering can be compared to driving:
Exercise of either activity without a valid license is a crime. Both
fields condition the continued grant of the license on compliance with
an extensive set of rules and regulations—the rules of the road and the
legal profession’s rules of professional conduct—and in both, self-
153. Id. at 440.
154. Id.
155. Id. at 485-86 (“Current lawyer disciplinary systems offer minimal public information
about client complaints or lawyer competency. Disciplinary bodies should make all client
complaints a matter of public record.”) (footnote omitted).
156. Id. at 446-47 (“Attorney regulatory authorities, by contrast, have kept their proceedings
almost entirely secret, and have similarly kept even their existence unpublicized. A well-publicized
lawyer-disciplinary agency that shared information about attorney competence or complaints with
the public would likely alleviate most, if not all, information asymmetry problems.”) (footnotes
omitted); id. at 449-50 (“[A] substantial portion of the regulation of attorney behavior has
exacerbated any information asymmetry that exists. Attorney regulation has a long tradition of
restricting advertising, client solicitation, client referrals, statements concerning lawyer credentials,
and law firm affiliation.”) (footnotes omitted); see also Curtis & Kaufman, supra note 147, at 673
(noting that the Florida Bar did not release any information for this study).
157. Barton, supra note 34, at 441-42.
158. See id. at 441-444.
159. Cunningham, supra note 28, at 1026 n.44 (citing In re Cason, 294 S.E.2d 520, 523 n.5
(Ga. 1982)); See also In re Childress, 561 N.E.2d 614, 622 (Ill. 1990); Ratcliff, supra note 5, at 492
(citing Rhode, supra note 29, at 509).
160. See Barton, supra note 34, at 433.
161. Id. at 484 (“Lawyers are a de facto self-regulating profession.”); but see, id. (“There is
little evidence to support the claim that self-regulation has provided clients or lawyers protection
from government oppression. To the contrary, the bar itself has regularly oppressed disfavored
minority viewpoints, races and religions.”).