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

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258 AKRON LAW REVIEW [40:255
Herr noted that mental health questions do not ask about conditions such
as narcolepsy and chronic fatigue syndrome, ailments that may raise
fitness concerns. 21 The bar’s failure to check mental health at all postadmission
means that “bar questionnaires ferret out few candidates,
impose intrusions on the privacy of novices that their more senior and
powerful colleagues do not bear and single out mental health conditions
for more stigmatizing examinations.” 22 The porous screening process
and the double standard for applicants compared to bar members mean
that “critics will continue to ask if the benefits of the mental health
questions justify their price.” 23
The danger exists for the character examination to punish those
who promote unpopular views, such as opposition to war. 24 Such
negative collateral impacts may be acceptable if the public is protected
by them, yet critics say that the lack of “correlation between problem
character and fitness histories and later bar disciplinary actions” suggests
that the screening process misses those who will “disserve their clients
or embarrass the bar.” 25
Other critics say that the character examination is under-inclusive
because marginal applicants often gain conditional admission instead of
outright rejection. 26 The tendency to admit questionable applicants is
due to “the natural inclination to not deny someone the ability to enter
the legal profession after they have devoted three years and a substantial
amount of money to a legal education . . . .” 27
Regardless of criticism, 28 the process exists. It will prevent or delay
admission for many, 29 including some ignorant of this test until it
prevents their admission.
21. Id. at 642.
22. Id.
23. Id. at 642-43.
24. See Konigsberg v. State Bar of Cal., 353 U.S. 252 (1957); see also, e.g., Theresa Keeley,
Good Moral Character: Already An Unconstitutionally Vague Concept And Now Putting Bar
Applicants In A Post-9/11 World On An Elevated Threat Level, 6 U. PA. J. CONST. L. 844, 866-67
(2004).
25. Barnard, supra note 18, at 3.
26. Don Murray, The President’s Message: Other Half of the Equation: Supreme Court Takes
a Fresh Look at Character & Fitness, 27 MONTANA LAWYER 4, 30 (2002).
27. Id.
28. Ratcliff, supra note 5, at 487-90; M.A. Cunningham, The Professional Image Standard:
An Untold Standard Of Admission To The Bar, 66 TUL. L. REV. 1015, 1043 (1992) (“Moral fitness
requirements serve to protect the profession’s status quo and supplements a variety of procedural
devices used to promote the current power structure.”).
29. Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491,
493-494 (1985) (“Although the number of applicants formally denied admission has always been
quite small, the number deterred, delayed, or harassed has been more substantial.”).