To become a licensed attorney, law school graduates must pass the dreaded bar exam, a two or three-day, grueling exam that has been characterized as a brutal and hellish experience. Many attorneys describe the exam as “among the most painful experiences of their lives.” But, there is a lesser known yet equally as important hurdle that bar applicants also must overcome—the character and fitness inquiry. Applicants have the burden to show that they are morally fit to practice law. They must reveal a plethora of personal information, dating back years or even decades, depending on the age of the applicant. They must reveal arrests, convictions, speeding tickets, bankruptcies, court judgments, employment discharges, and much more. For some applicants, this may prove to be the most challenging part of the admission process.
In her seminal work in 1985, Professor Deborah Rhode explained the dual purposes of the character and fitness requirement: (1) protecting the public given their inherent vulnerability created by the disproportionate knowledge of lawyers and the required trust for essential matters, and (2) protecting the courts and administration of justice from those who are dishonest (disposed to perjury or bribery). Rhode also opined that there had not previously been “comprehensive historical or empirical research on the American bar’s character mandates, and no systematic scrutiny of their underlying premises.” Despite Rhode’s effective scrutiny and the continued scholarly criticisms of the practice over the intervening thirty-six years, the character and fitness requirement remains an entrenched part of the bar application process. In fact, Rhode and others have referred to the character and fitness requirement as the one “fixed star” of the bar admission process. Therefore, as the legal community focuses on revamping the dreaded bar exam to better fulfill its intended purpose, reconsideration of the character and fitness inquiry as part of the attorney licensing process should be part of the discussion as well.
This Article seeks to survey the criticisms, possible justifications, and proposals for change to the character and fitness requirements for admission to state bars in the United States. While there is some state variation, the general process and the requirement of proving “good moral character” are similar. Therefore, while we will provide specific state examples to highlight inconsistencies of application, we will focus on the National Council of Bar Examiners (“NCBE”) as a standard example, since it provides character and fitness investigations on behalf of almost half of the states. Section II provides historical background regarding the character and fitness requirements, including the intended purpose and its discriminatory origins. Section III offers an overview of the current process for investigating character and fitness and identifies some of the common issues that trip up bar applicants. Section IV summarizes the many scholarly criticisms and highlights the inequities and unintended consequences of the current system. Section V seeks to explain the reasons why character and fitness investigations remain in all fifty states despite the many valid criticisms. Sections VI and VII outline some proposed changes to the character and fitness process, including a recommendation that states expand the appropriate use of conditional admission in cases that warrant valid concern but should not establish a flat bar. In conclusion, this Article acknowledges character and fitness inquiries in some form are likely here to stay, and it seeks to highlight those proposals with the best chance of being implemented to improve the current process and identify the necessary next steps for meaningful change.