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

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CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 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.”).
CLEMENSFINAL.DOC 3/30/2007 12:51:01 PM 2007] THE “GOOD MORAL CHARACTER” EXAMINATION 259 D. Providing a Framework for Understanding Character Examination Potential bar applicants should know what might result in the denial of their admission to the bar. 30 Ideally, sanctions would be unnecessary to modify behavior. 31 This Article aims to help secure compliance with each bar’s standards by revealing the typical reasoning behind these rules, as well as how to comply with them. Part II of this Article describes the inception and evolution of the character requirement. Part III outlines the issues that the bar examines to discern character. Part IV proposes methods for applicants to deal with problems areas. Part V contains closing remarks. The best advice for any applicant with concern regarding admission is to contact an attorney familiar with the bar admission process in the targeted jurisdiction. Because “[c]haracter is much easier kept than recovered,” 32 early legal advice and action can be invaluable. 33 Even potential law school applicants and current law students may benefit from this Article by preventing later delays in their bar admission process. II. A SHORT HISTORY OF CHARACTER EXAMINATION A. Early Foundations The success of lawyer regulation can be judged by considering how closely the implementation of the rules meets the stated goals or justifications for these rules. 34 The meaning of good moral character has changed dramatically over time. It originated in ancient Roman times. 35 The term first appeared in American bar admission statutes in the 30. See Arnold, supra note 6, at 95 (citing Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 NOTRE DAME L. REV. 67, 69 (1984)). 31. See, e.g., Stuart P. Green, Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1592 n.192 (1997). 32. In re Maria C. for Admission to the Bar of Maryland, 451 A.2d 655, 656 (Md. 1982) (quoting THOMAS PAINE, THE AMERICAN CRISIS XIII (1783)). 33. See, e.g., Elizabeth Gepford McCulley, School Of Sharks? Bar Fitness Requirements Of Good Moral Character And The Role Of Law Schools, 14 GEO. J. LEGAL ETHICS 839, 851 (2001) (discussing Ky. Bar Ass’n v. Guidugli, 967 S.W.2d 587, 589 (Ky. 1998), where the Kentucky Supreme Court found that an applicant who followed counsel’s erroneous advice “had acted in good faith.”). 34. Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis Of The Justifications For Entry And Conduct Regulation, 33 ARIZ. ST. L.J. 429, 432 (2001). 35. Ratcliff, supra note 5, at 490.
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