Apology and Remorse in the Bar Application Process (Mitchell Simon, guest blogging)

[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.

Comments

[Mike Frisch]

I have been providing this advice for a number of years.

One trend that I have noticed is a cross-checking of disclosures to the Bar with those on the law school admission application. Applicants should be careful to be consistent in this regard and should seek to amend the law school application if there is a problem.

[Richard Carmody]

Too bad there isn't a predictor for professionalism and civility. That's a screen that would help the profession as a whole.

[Mitchell Simon]

We are seeing cross-checking in NH as well. I now give a talk on this on the first day of law school orientation. Unfortunately, not many of those who "slanted" their applications are willing to amend at the outset. This failure has presented major problems for some of these folks upon graduation.

[David Cameron Carr]

The trend in California for last few years has been toward a much harsher admissions process including greater scrutiny and "zero tolerance" toward any alcohol related criminal conviction. Unfortunately, this has been accompanied by a unnecessarily confrontational attitude in the so-called "informal conferences" the Committee of Bar Examiners holds with applicants. Rude and abusive treatment is apparently deemed necessary by some committee members "to get the truth" from some applicant. Judicial review of admissions decisions is beyond the financial means of most applicants and the lack of meaningful oversight has encouraged this petty behavior.

[Rick Underwood]

When I entered Law School (Ohio State) years ago, we were fingerprinted and screened by Character and Fitness (upon admission to law school). I don't know how they do it now. In some ways it makes sense. Why spend 3 years in law school only to be dubbed ineligible. In Kentucky you run the C&F gauntlet after graduation. I have had similar experiences with "amendments" to law school applications.

As a new law student just back from Viet Nam, I did find it irritating to have a young associate at a local law firm berate me for not voting in the last Presidential election. Not only was it none of his business, but when the election was held I had been on an Advisory Team with South Vietnamese RF/PF (local troops), and had no regular source of supply, let alone absentee ballots. The election was not on my mind. In any event, both candidates sucked. This made no difference to the CF interviewer. When I was admitted on motion in Kentucky - I had been asked by the President of the KBA to be Ethics and Unauthorized Practice Chairman, so I thought it would be a good idea to join (!) - one CF member first made the point at the outset that he was "Court Appointed" (not KBA appointed - I guess that was announcement of his superior status, or a notice that he was immune from suit) and then demanded to know why I had not committed Unauthorized Practice by teaching in Kentucky.

Regarding David's observations, I find it amazing that there is "Zero tolerance" regarding alcohol related criminal convictions. The police on college campuses literally hunt students for possible duis, and they will stalk and arrest students for public intoxication if they decide to do the right thing and walk home instead of getting behind the wheel. Meanwhile, members of the bar engage in all kinds of activity with seeming impunity. It is very common to see minor alcohol offenses on law school applications - male and female applicants. I always bristle a bit when committee members make a big deal out of it.

[Mitchell Simon]

Based on my review of thirty years of cases for the Remorse article, the California approach seems to me to be very unusual. However, such an offense is a trigger for a look at continuing drug and alcohol problems and the entry point into the complex world of candor.

[Rick Underwood]

Frisch just posted an interesting complaint at Legal Profession Blog. The bar applicant did not make full disclosure of his "issues." Mike received a snotty complaint to the effect that he had no business posting complaints (although complaints in this jurisdiction are apparently public records). The same commenter attacked the bar for an untimely investigation. In other words, the attitude seems to be - I'll tell a little but not everything, and you have to investigate and nail me in a timely manner. If that's your attitude, good luck. No sympathy from me!

In my experience, Law Schools try to help their students; but there is only so much you can do. Again, I say screen 'em out early if you can, before they screw over clients, because they surely will.