2.03. Requirements: Acceptable “Character and Fitness”

To obtain a law license, you must be found to have good “character and fitness.”  The state has strong reasons to require that those who have law licenses are honest and trust-worthy individuals.  Lawyers are entrusted not only with a client’s secrets but often with their most treasured property (including money).  States need some gate-keeping function to ensure that the law does not become overrun with smart crooks and con men.  The Vermont Supreme Court put it succinctly:

The purpose of requiring an applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Rules of Professional Conduct.[1]

What kind of society would we live in if lawyers constantly stole from their clients, lied to the court, and encouraged clients and witnesses to do the same?  The public would have no faith in such a system and would ultimately start turning to methods of self-help to avoid lawyers who would be perceived as only making things worse.  So, the state has put in place a method to try and weed out individuals who have character traits that indicate they are likely to betray both their client and the broader legal system.

That’s the positive spin on the character and fitness requirement. However, such a system also has its downsides.  The system is rife with potential for abuse because the term itself is so vague.  The Bible says “judge not, that ye be not judged.”[2]  There is a lot of judging going on with the bar association character and fitness committees.  In fact, that is their entire purpose.  What does it mean to have good (or bad) “character and fitness”?  Often those on the character and fitness committees are political appointees which means they will often be older and perhaps hold views of character and fitness that coincide with an outdated world view.  The Supreme Court of Washington correctly recognized the concern with the character and fitness standard:  “while ‘good moral character’ is essential for the ethical licensed practice of law, ‘[s]uch a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.’”[3]  All but the most saintly could find someone willing to question their “character and fitness.”  Do these committees have any guidance as to what is good character and fitness?  Luckily, the answer is yes.  In the Readings you have Rule 8 of the Mississippi Rules Governing Admission to the Mississippi Bar.  That Rule sets out a non-exclusive list of factors that the committee should consider in evaluating character and fitness of applicants.  Do you think this enough guidance?  There are also constitutional limitations on denying someone based on character and fitness considerations.  For example, the United States Supreme Court held in Schware v. Board of Bar Examiners: “[The] State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.”[4]  In that case, the Supreme Court held that mere membership in the communist party does not justify a finding of bad moral character (see how view of things can change?).

The Schware case demonstrates a concern that remains with the character and fitness process: applicants may be rejected because members of the committee do not like what applicant has said or the fact that an applicant has taken unpopular stances. Quoting the Supreme Court of Washington in the Simmons case again:

Concerned with the morality of an applicant, the [character and fitness] inquiry serves a legitimate interest in protecting the public and preserving a certain degree of professionalism.  Nonetheless, we also know that throughout our history the standards used to assess moral character have shifted as society’s norms and moral codes have changed.  For example, categorical exclusions of women or rejection of applicants based on race, ethnicity, or sexual orientation were once generally accepted.  But just as we have evolved in our understanding of humanity, we have also grown in our understanding of what makes a bar applicant a person of good moral character worthy of admission.[5]

When decisions are made on improper grounds, instead of upholding the administration of justice, it undermines it. 

And let me take this one step further:  with the increased on-line presence of law students and the permanence of these on-line activities, law students need to be very conscious of what they are posting on-line – especially during law school.  Consider this:  Florida’s Character and Fitness Commission considered adopting a requirement that all applicants seeking to take the Florida bar exam had to list all of their social media sites on their application and provide the Committee access.[6]  The suggestion for all applicants was rejected, not because the Committee felt it was a bad idea, but instead because “if applicants are required to provide access to their social websites, they are likely to delete any derogatory material before staff has the opportunity to review it.”  This should not give applicants much solace – there is nothing stopping members of the Commission from visiting social media sites and exploring for applicants even if it is not an official part of the evaluation process.  In addition, the Commission did adopt a policy of investigating social media sites for several types of applicants, including: (1) those with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse; (2) applicants with candor issues; and (3) those applicants that have disclosed involvement in an organization advocating the overthrow of a government in the United States.  While this report came from a study commissioned by the Florida Supreme Court, there is nothing that would stop an interested committee member in any state from exploring an applicant’s social media presence.

Maryland has a process by which all applications for the practice of law are forwarded to a member of the Character Committee.  The Committee member does an investigation (including an interview with the applicant).  Otion Gjini applied, and David DeJong was assigned to his file.  DeJong discovered “rather serendipitously” during his investigation several statements that Gjini had posted on the internet as recently as his last semester in law school.  These posts included the following:

“This guy is a dipshit.”

“Yo, shut the fuck up so we can watch the video.”

“The both fight like hoes.”

“The bully kid was a pussie.”

“That girl is hot as fuck.”

“Who is the faggot that made this video.”

As a result of these statements, DeJong’s recommended that Gjini should not be allowed to sit for the bar examination because he lacked good character and fitness.  What do you think? In re Gjini, 141 A.3d 16 (Md. 2016)

The court denied Gjini’s application to sit for the bar – but purportedly because he failed to disclose some criminal activity in his bar application and not solely because of his on-line comments.  However, a couple of points from the opinion make you think.  First, the court does say that the on-line postings were “one factor to be considered” in evaluating the application.  The court then goes out of its way to quote extensively from a member of the Character and Fitness Committee regarding the comments.  I think it is worth quoting from the opinion because it gives a sense of how a committee or court could tie on-line comments to a finding of poor character and fitness:

I am not impressed with the fact that similar language may find its way into the lexicon of popular music or celebrity-based magazines or may resemble that which trickles from the mouths of various sports figures and pop-culture icons.  I am not willing to have the questions of character as it may pertain to the practice of law be defined by the purveyors of pop-culture. . .

Mr. Gjini’s postings continued a hideous practice of relegating certain persons within our community – in this instance, women and homosexuals – to second-class status and subjecting them to derision and exclusion.  The very fact that such expressions directed at any person within our community would continue to find any degree of acceptance in the culture, pop or otherwise, might be the most compelling reason why they should not be tolerated among members of the legal profession.  The legal profession cannot aspire to justice on behalf of just some members of the community to the exclusion of others.  If the profession is going to serve its proper function at all, all members of the community must be secure in the belief that the law will afford justice to each of them or the profession will fail altogether. . . .

That said, as offensive as Mr. Gjini’s on-line drivel may be, and as offended as I may be in reading the posts, I am equally concerned about the prospect of the State denying a citizen the right [to] practice the profession of his choosing based upon his speech, absent some exception to the guarantees of the First Amendment of the United States Constitution.

This is not the last word in addressing on-line comments and bar applicants.  We can expect to see more exploration of the interaction between the evaluation of character and fitness and the First Amendment.

[1] In re Bitter, 969 A.2d 71, 72 (Vt. 2008).

[2] Matthew 7:1 (King James Version).

[3] Matter of Simmons, 414 P.3d 1111 (Wash. 2018).  In this case the Supreme Court of Washington did a rare thing: it reversed the finding of bad moral character by the character and fitness committee.  In that case the applicant had a history of substance abuse and had been charged with numerous crimes – both as a juvenile and adult – as well as two bankruptcies.  The court, however, noted that she had a stellar record in law school. The court said that it would not adopt a bright-line rule for determining whether someone has good moral character, but would consider it on a case-by-case basis.  The court then found that her rehabilitation and remorse over six years was sufficient to demonstrate good character and fitness.  

[4] Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239 (1957).

[5] Matter of Simmons, 414 P.3d 1111, 1112 (Wash. 2018).

[6] Florida Bd. of Bar Examiners re: Consideration of the Final Report of the Character and Fitness Commission (July 2009) http://www.floridasupremecourt.org/pub_info/documents/2009_FBBE_Character_Fitness_Response.pdf (last visited March 24, 2017)