Powers v. St. Johns Law: Can This Be Right?

The electronic ABA Journal summarizes this report from the NY Post (URL below): St John's revoked the admission of a 3L scholarship student who is #3 in the class and has what looks to be a stellar resume because he did not reveal all the details of a since-expunged drug conviction when he was 21 or 22 (in 1999). He was planning to reveal his criminal history to the Character Committee and, in anticipation of doing so, he asked St. John's for a letter of support. Instead, the school expelled him. 

Now, it does happen that when students come close to admission they recall an incident from a misspent youth in greater detail than they revealed on application, which may even have omitted it entirely. The character committees may then ask whether the incident was revealed (or fully so) when applying to law school. If not, the student will have to return to the school for a letter saying that he or she would have been admitted anyway.

In my experience, if the discrepancy is not significant or the incident, even if not revealed on application, is "small potatoes," or if there is an honest mistake ("it was expunged and your question on the application did not make it clear that I had to reveal an expunged conviction" -- which by the way is sometimes so but usually not), the school will relent.

So it is astonishing to see a retroactive withdrawal of admission. The news story is unclear on the depth of the discrepancy between what was revealed and the truth. Perhaps that explains it but I think any discrepancy would have to quite dramatic and the underlying (unrevealed) conduct most serious to justify this academic "capital" sanction. The student has sued. I don't know his chances but based on what we know, and there may be much we do not know, this seems a serious overreaction by the school. That doesn't mean the student wins. I suspect the claim sounds in contract.

http://www.nypost.com/p/news/local/ex_student_sues_st_john_after_law_sBlraHBRPs8ZDvpQBF9ZsM

Comments

[Brad Wendel]

I've seen this a few times, and administrators can be quick to assume that the discrepancy is the result of dishonesty, when in fact the scope of disclosure required on law school applications can be unclear. Expunged convictions are the biggest pitfall. Applicants have been told, "For all purposes, this conviction no longer exists -- it's as if it didn't happen," and then they're asked to disclose all convictions. Why infer dishonesty when they omit the conviction on their application? I've even seen a situation where a student obtained advice from a lawyer back home that an expunged conviction need not be disclosed. It would be seriously unfair to penalize a student in that situation for failing to disclose.

But take expungement out of the picture for a minute. The following scenario still strikes me as troubling:

(1) Student fills out application, in response to ambiguous question about a marginal case, does not disclose some past event.

(2) Student is admitted and is now a law student. Thinks about it, talks to other students, takes a PR class, gets nervous about the bar application, etc., and realizes he/she made a big mistake by not disclosing.

(3) In order to make things right, student retroactively discloses to the school.

(4) School freaks out and institutes disciplinary action against the student, which of course must be reported to the bar.

I wouldn't want to punish students for having made the wrong call BEFORE becoming law students and being educated in the idea that professionalism means candor, honesty, and not answering questions evasively. Yes, I know, we want to ensure that students have good moral character before they apply to law school, but we should be careful not to confuse early 20's cluelessness with bad moral character.

Anyway, what are we (law schools) doing in the C&F screening business? Isn't that for the bar? Admittedly, I'm not a big fan of C&F review at all, even conducted by the bar, but I haven't heard a good reason why law schools ought also to be in that business, except to save applicants the cost of three years of legal education who are certain not to be admitted to practice after they graduate.

[Rick Underwood]

I thought that the NY Post must have had the facts wrong. It seemed to me that the school made a bad call. But I have only been on an Admissions Committee for 30 years, and I am not a real lawyer.

[stephen gillers]

Responding to Brad's last paragraph: I don't see that the law school is doing the bar's work for it. It is either providing factual information that will enable the character committee to make an informed judgment (i.e., what was revealed on application; whether the omitted information would have resulted in denial of admission); and/or it is protecting itself.

On the latter point, there are some omissions, or worse affirmative mistatements, that would fully justify withdrawal of admission. I would hope that this is rare but it suspect it happens (otherwise the incentive to falsify to get in would be cost-free).

The school (and not only a law school) has a right to expect candor in the admission process, not because it is acting as the bar's monitor, but because it is entitled to candor as a school.

[W.R. Chambers]

What does expunged mean? If state law provides that a criminal record be expunged and that the defendant may answer "no" if asked whether she has ever been arrested or convicted, what right does a bar examining committee have to exercise government power (deny admission to the bar) on the basis of a crime that the law deems never to have been committed?

[Rick Underwood]

I'm sorry, but many bar associations including my own, require applicants to report expunged convictions. If you are counseling students, you should know what you are doing! That is to say, you should ask the C&F Committe what the rules are. This is especially important due to the imuunity given these "Court Appointed" officials. This is not a matter of theory. In any event, I thought that the student in this story had made disclosure. I find the Post article very confusing, and I still wonder if the reporter has his facts right.

[Brad Wendel]

The previous two comments illustrate exactly the danger here: Suppose state law says an applicant may answer "no" if asked whether he or she has been arrested or convicted. A state bar requires disclosure of expunged convictions. Just to make it more fun, imagine that the law of State A not only permits an applicant to answer "no" but also provides that no employer or other requester of information may ask about an expunged conviction. (A little googling around turned up a New Hampshire law that permits a person to be questioned only in terms like, "Have you ever been convicted of a crime that has not be annulled by a court?") Assume the bar in State B then asks, "Have you ever been convicted? . . . and we require you also to disclose expunged convictions. What is an applicant to do then?

In response to Rick Underwood, many of the students I've talked to have received advice in similar circumstances. He says a lawyer should know what he or she is doing, and contact the C&F committee if necessary. But in many cases, the lawyer is giving advice with respect to the law of the state in which the student was convicted, and under that state's law, the expunged conviction need not be disclosed even if an application calls for it. I have a hard time faulting that legal advice just because the lawyer didn't call up the C&F committee in some other state and ask whether they would want it disclosed. Just because the bar really, really wants to know this information, it doesn't have a right to receive it if it's been made unavailable by the law of another state. I agree this isn't a matter of theory -- it's a very practical conflict of law problem faced frequently by actual applicants.