Bar News - July 15, 2015
Character and Fitness: What If Applicants ‘Just Don’t Get It’?
By: Kristen Senz
Every so often, an applicant to the bar comes along who, although able to pass the bar exam, lacks the insight or accountability to understand that certain past behavior was morally wrong. To put it simply, “they just don’t get it,” explains Sherry Hieber, general counsel to the NH Office of Bar Admissions, at a recent meeting of the NH Supreme Court Advisory Committee on Rules.
This scenario played out recently with an applicant who was asked to appear before the NH Supreme Court Character and Fitness Committee for an interview – the committee generally interviews fewer than 10 candidates per year – based on application materials submitted.
“It is a confidential process, but if I told you about the details, you would be shocked,” Hieber told the rules committee.
A proposed amendment to Supreme Court Rule 42B would have more explicitly enabled the Character and Fitness Committee to recommend against the admission of a candidate who fails to sufficiently recognize the wrongfulness of his or her misconduct, even if the misconduct alone is not significant enough to be disqualifying.
However, after a public hearing and a lengthy discussion on June 5, the rules committee voted against recommending the rule change to the court, expressing concerns about the necessity of the proposed standard and the message it might send to future lawyers.
“I’m wondering if this is a solution trying to find a problem,” said Judge N. William Delker, a member of the rules committee. “I’m worried that adopting this rule basically swallows all the other rules… This is so vague and standard-less that I’m not sure how anyone could beat that on appeal.”
Character and Fitness Committee Chair David Bradley of Stebbins Bradley in Hanover has been a member of the committee for 33 years and says he was “the principal instigator” of the rule change proposal. The last time the committee recommended against a candidate’s admission to the bar was 2010, but had the proposed standard been in place, Bradley said, the committee might have decided differently on one or two recent applications.
“From time to time, in all the years I’ve been on the committee, there have been instances where the person just doesn’t get it and doesn’t understand the wrongfulness of their conduct, and that’s a legitimate concern,” he says.
Bradley explains that the committee first looks at the type of conduct in a person’s past, and then the degree of seriousness, to determine whether the conduct is disqualifying. “Most anything can be minor,” he says. “It can be an untruth, some act of dishonesty that’s not all that serious, and maybe it was done when the brain wasn’t fully developed, as a teenager. Okay, so it violates, but now you’ve been to law school and you want to be a lawyer, and you ought to be able to appreciate that what you did was wrong.”
In some cases, as seen in the 2010 NH Supreme Court decision in Application of GW, that realization never comes. As just one example, having impersonated a robber by holding a store clerk at knifepoint on April Fool’s Day, GW years later considered it nothing more than “a bad joke.” (Editor’s note: The committee cited multiple reasons for denying GW’s admission. Read the full decision.)
Mitchell Simon, a professor emeritus at the University of New Hampshire School of Law, is of counsel at Devine Millimet. Simon has represented bar applicants before the Character and Fitness Committee, and his writing about character and fitness standards has been published nationally. Simon attended the June 5 public hearing to oppose the rule change.
“I think the proposal is based on a faulty premise,” Simon said. “The current rules provide ample basis to disqualify someone in this situation.”
Originally drafted by Bradley, the current rule was adopted nine years ago after a lengthy process of development by the Character and Fitness Committee and subsequently the rules committee. The character and fitness standards, which are more specific than those adopted in many other states, include seven positive characteristics to be considered – things like good communication and reasoning skills – and 14 grounds for recommending denial of admission to the bar.
State law (RSA 311:2) dictates that “Any citizen of the age of 18 years, of good moral character and suitable qualifications, on application to the supreme court shall be admitted to practice as an attorney.” But the rules put the burden on an applicant to show good moral character and fitness.
If the Character and Fitness Committee submits a negative recommendation to the Court, the applicant has the right to appeal and to a full due process hearing with evidence and witnesses. This, Bradley says, has only happened a few times during his tenure, but the committee usually defers about one or two applicants per year, often due to alcohol abuse. These applicants are generally asked to reapply after a year of sobriety.
“If someone is currently abusing alcohol, we find they are unfit,” Bradley says. “They may have never done anything morally wrong, but we don’t recommend admission for someone who is currently abusing alcohol.”
Financial irresponsibility is another one of the grounds on which the Character and Fitness Committee can recommend denial of admission. Of course, having a debt burden doesn’t automatically disqualify an applicant, but it is an issue of increasing concern, Bradley says.
“The biggest change from the first half of my experience until now is the percentage of people who have so much debt that you worry they’ll never be able to practice successfully enough to get it paid,” he says. “You know the job market has not been great, and the person has $300,000 plus in debt, mostly in student loans, and you just have to be concerned that this person is a risk, but yet we do not have any standard – even though the notion has been floated, but I never floated it – that a certain level of debt would be disqualifying.”
Bradley said that to his knowledge, no jurisdiction currently employs such a standard.
Since the adoption of the character and fitness standards in 2006, the committee has worked hard to tie each of its decisions to a specific provision within the rules, Bradley says. Even before the standards were adopted, the committee always has articulated to the court the reasons behind its decisions.
Over the years, Bradley says, he has appreciated the input of the committee’s lay members – a second lay member was added about a year ago – who often challenge the thinking of the lawyers on the committee.
He recalled with fondness the perspective of the late Elizabeth Crory, who served on the committee for many years. “She said, ‘I’d like to ask members of the committee, how many of you would hire this person as your lawyer or for anyone in your family?’ And we all thought, being honest, none of us would... Well, we did [recommend the person for admission], but it was an important question to ask.”
What was the reasoning behind the committee’s decision in that case?
“The answer has to do with our standards. What we’re asked to do is decide whether the candidate has exhibited good moral character and fitness, and we’ve never extended that to whether we think the person is going to be a successful lawyer,” Bradley says. “The ability to practice law is tested by the bar exam. For right or wrong, that’s it, and if someone has passed the bar, they’ve demonstrated that ability.”