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

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CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 278 AKRON LAW REVIEW [40:255 parking citations which were not paid “until he realized it might adversely affect his bar application.” 238 Although that applicant also had been involved in an automobile accident while uninsured, failing to pay parking tickets alone might result in rejection. 239 B. Past History of Criminal Convictions or Activity Criminal history is a top consideration. The bar requires applicants to reveal unlawful conduct including felony, misdemeanor, traffic, and juvenile convictions or detentions. 240 Character encompasses an applicant’s past behavior, along with the community’s views of such conduct. 241 Those who violate criminal laws may lack moral character. 242 An annotation by A.L.R. “collects and discusses the cases in which state and federal courts have considered whether the criminal record of an applicant for admission to the bar so adversely affects the applicant’s moral character as to preclude admission.” 243 A felony conviction is per se disqualifying in several states. 244 A criminal record does not necessarily preclude bar admission. 245 Some legal violations, like speeding, 246 carry less opprobrium than crimes such 238. Id. 239. See infra Parts III.D.3, III.F. 240. Arnold, supra note 6, at 91 (citing Donald H. Stone, The Bar Admissions Process, Gatekeeper or Big Brother: An Empirical Study, 15 N. ILL. U. L. REV. 331, 342-43 (1995)). Stone notes that 96% of 48 responding states place no time limit on unlawful conduct inquiries and all responding states seek juvenile convictions. Stone, supra at 342-43. 241. George L. Blum, Annotation, Criminal Record as Affecting Applicant’s Moral Character for Purposes of Admission to the Bar, 3 A.L.R. 6th 49 (2005). 242. Id. § 2. But see Arnold, supra note 6, at 73 (“[A]pplicants with records of prior unlawful conduct may be more committed to their clients and the system of justice because of prior experience on the wrong side of the law. The presumption made by the ABA and state bars that prior unlawful conduct by a bar applicant is predictive of future unlawful conduct or misbehavior as a lawyer has been criticized and remains unproven.”) (footnote omitted). 243. See Blum, supra note 241. 244. Arnold, supra note 6, at 73-74 (noting Florida, Indiana, Mississippi, Missouri, Pennsylvania and Texas per se bar admission for felons (citing Comprehensive Guide (1995-1996), supra note 197, at 6 chart II ). But see Arnold, supra note 6, at 63 n.4 (citing Carr, supra note 13, at 381 (“noting number of states adopting per se disqualification approach to bar admissions for prior felony conduct continues to decline”)). 245. Blum, supra note 241, § 5 (“The courts in the following cases expressly took the position that a criminal record does not necessarily preclude admission to the bar.”). 246. Yes, speeding is a moving violation. Deena Trueblood, Is A Speeding Ticket A Moving Violation?, NEV. LAW., February, 1997, at 22, 23 (“AND THE NUMBER ONE QUESTION ASKED BY CONFUSED APPLICANTS, AND MY PERSONAL FAVORITE: 1) If the question asks if you have ever been arrested, cited, indicted for or convicted of any criminal charges including moving traffic violations, do you really want me to list all my speeding tickets?”).
CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 2007] THE “GOOD MORAL CHARACTER” EXAMINATION 279 as embezzlement, rape, or murder, but any crime impacts admission. 247 The more serious the criminal act, the longer it may take to show rehabilitation. 248 The distinction between malum in se crimes 249 and malum prohibitum crimes 250 is that the former, alone, are grounds for disbarment and, thus, cause greater concern for applicants. 251 An applicant disbarred in one jurisdiction will not be necessarily be automatically denied admission elsewhere, but it doesn’t help. 252 Similarly, members of one bar might lack character according to another bar. 253 Although “an arrest or a charge ending in dismissal does not establish that the accused committed the prohibited act,” 254 a conviction is not required for denial. 255 The bar asks more than that required for lawyers under the Model Rules of Professional Conduct. 256 Criminal acts concern the bar more than case dispositions 257 because, just as a 247. See Blum, supra note 241, § 6. 248. Id. § 14 (citing In re Gossage, 5 P.3d 186 (Cal. 2000) (The court noted that “the more serious the misconduct and the bad character evidence, the stronger the applicant’s showing of rehabilitation must be.”)). 249. Legal Information Institute, Malum in se, http://www.law.cornell.edu/lexicon/ malum_in_se.htm (last viewed January 7, 2006) (“An innately immoral act, regardless of whether it is forbidden by law. Examples include adultery, theft, and murder. See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).”). 250. Legal Information Institute, Malum Prohibitum, http://www.law.cornell.edu/lexicon/ malum_prohibitum.htm (last viewed January 7, 2006) (“An act which is immoral because it is illegal; not necessarily illegal because it is immoral. See, e.g., United States v. Bajakajian, 524 U.S. 321 (1998).”). 251. In re Ruffalo, 390 U.S. 544, 555 (1968) (White, J., concurring) (Noting that “members of a bar can be assumed to know that certain kinds of conduct, generally condemned by responsible men, will be grounds for disbarment. This class of conduct certainly includes the criminal offenses traditionally known as malum in se.”). 252. Blum, supra note 170, § 7 (citing In re Question Certified by Fla. Bd. of Bar Exam’rs, 265 So.2d 1 (Fla. 1972); In re Kimball, 40 A.D.2d 252 (N.Y. App. Div. 2 Dept. 1973), rev’d, 301 N.E.2d 436 (N.Y. 1973)). 253. Id. § 9 (citing Warbasse v. State Bar of Cal., 28 P.2d 19 (Cal. 1933)). 254. In re Taylor, 647 P.2d 462, 463 (Or. 1982) (citing 3A J. WIGMORE, ON EVIDENCE § 980a (Chadbourne rev. ed. 1970)). 255. See Blum, supra note 241, § 19 (citing In re Greenberg, 614 P.2d 832 (Ariz. 1980)). The court in Greenberg concluded that the applicant, without a criminal record or any pending charges, failed to demonstrate reformation where he “admitted trafficking in marijuana for six months several years prior to the present proceeding, and had not reported the illegal income to the Internal Revenue Service until shortly before the proceeding.” Id. 256. See McCulley, supra note 33, at 845-46. (“The Model Rules explain that a lawyer should only have to answer professionally for offenses relative to the fitness requirements to practice law. [MODEL RULES OF PROF’L CONDUCT R. 8.4(c) cmt. 1 (1983).] These include offenses involving ‘violence, dishonesty, breach of trust, or serious interference with administration of justice.’ [Id. at cmt. 1].”) 257. See generally In re Glenville, 565 N.E.2d 623 (Ill. 1990).
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Facing the Klieg Lights: Understanding the "Good Moral Character"

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