[Mitchell Simon, of New Hampshire, is guest blogging on the role of apology and remorse in the bar application process.]
If you are the “ethics person” at your law school or have represented applicants before your state’s Character and Fitness Committee, you have no doubt pondered how this somewhat mysterious admission process works. Based on the lack of available guidance, students with past indiscretions become very nervous, if not panicked, when they first learn of the character and fitness evaluation.
Most of us would like, when asked for advice, to be able to tell a young student with, for example, a high school DUI, a college arrest for public urination and some credit card debt whether he or she is at risk of an admission denial or delay. I found that providing this type of advice was more difficult than I expected, since character and fitness cases are rarely published. Those that are published, at least on youthful offenses, offer little help since they fail to identify any type of consistent methodology on the impact of various underlying offenses.
This conundrum led me to my first article on the topic, What’s Remorse Got to Do, Got to Do With It? Bar Admission for Those with Youthful Offenses, soon be published in the Michigan State Law Review. After reviewing thirty years of reported cases for this article, I concluded that the nature of one’s youthful offenses (as opposed to serious criminal activity), in virtually any combination, do not predict the outcome. Rather, having past problems usually gets the applicant an interview at which the following questions are evaluated: 1. Was the applicant candid and remorseful? 2. Is there a risk of future drug or alcohol abuse?
Having reached these conclusions, I focused on the candor and remorse issues. Using literature from the fields of social and legal philosophy and ethics on the nature of apology and remorse, I argue that inquiry into a bar applicant’s remorse in cases of youthful offenses fails to serve significantly the underlying purpose of the process. It is also likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors counseling the applicants. The focus on remorse muddies this already complex task and adds little, if anything, to the Committee’s ability to access the applicant’s candor during the process.
After having completed this work, I grudgingly recognized that this article was unlikely to change the well-settled pattern of looking at candor and remorse in youthful offense cases. Also, there is, in my opinion, a legitimate need to look at remorse in cases of serious offenses. I joined with my colleague at UNH, Nick Smith, and Nicole Negowetti, from Valparaiso Law School to propose guidelines to improve this decision making. That article, Apologies and Fitness to Practice Law: A Practical Framework for Evaluating Remorse in the Bar Admission Process, will be published in the Journal of the Professional Lawyer in the fall.
In light of the importance of remorse in the character and fitness process and the difficulty committees—and indeed all of us—face in interpreting the meaning and value of apologetic gestures, this article develops specific guidelines that committees can use to evaluate whether a bar applicant’s statements of remorse are sufficient to show rehabilitation. It provides an analysis of the inconsistent treatment of apologies and remorse in the character and fitness context and explains the confusing and often contradictory meanings conveyed by apologies.
My colleague Nick Smith has argued that adversarial legal environments are not a natural habitat for repentant gestures like remorse and apology. Following his theory of categorical apology set out in his book I Was Wrong, we enumerate thirteen questions that should guide review boards as they evaluate the apologies and remorse of bar applicants. Such principles, we believe, will concentrate the reviewer’s attention on the variables most salient to evaluating the quality of the applicant’s remorse. We argue that such a principled framework can lend rigor and increase consistency in the review process, which will, in turn, better serve both the bar and applicants to the bar.
We welcome your thoughts on the character and fitness process and the arguments in our articles.