Over the last several years, I have written a number of articles on bar admission, represented applicants in contested cases, and counseled well over a hundred law students with bar admission question. Based on this work, I have developed a healthy skepticism about the current system’s ability to predict fitness or to develop useful standards to avoid wholly impressionistic judgments. The recent California Supreme Court opinion denying the application of Stephen Glass is certainly worthy of careful analysis in this regard. I look forward to reading the comments of my fellow bloggers.
After reviewing the decision, I conclude that the Court had an ample legal basis to reach the decision it reached, despite the Bar Court and its Review Division’s contrary decisions, which would have admitted Mr. Glass. In my view, the Court’s decision could have rested on its finding that Glass was not candid during the New York and California admission processes. Though I also believe the Court could have drawn different inferences from these facts, its findings of lies and deceit during the admission process present a principled and solid basis to deny admission. Such acts are recent and impact on one’s current character for honesty. They do not require the committee or court to predict future conduct based on 15-year old actions, a process for which there is little, if any, empirical support. Nor would such a judgment rely on evaluations of amorphous and misunderstood concepts such as remorse.
The Court unfortunately did not stop with it finding of lack of full candor during the admission process as a basis for the denial. Rather, like many character and fitness cases, it seems to have meandered on in its analysis. The Court turned from what I think is the correct issue- whether Glass, who demonstrated the intellectual capacity to be a lawyer, rehabilitated himself sufficiently in light of his lies in 1996-1998 to no longer present a risk to the public if admitted. The Court’s analysis then morphed, possibly without realizing it, to the question of whether admitting him would cast the bar in a negative light.
I say this because the Court dismissed his twelve years of intensive and successful therapy on the underlying reasons he lied, by saying that the therapy “conferred benefits primarily on himself.” If the question is whether his prior lies are predictive of future lies, successful therapy would be critical to his rehabilitation. In fact, the doctors and those who knew him suggested he was less likely to lie than most of the rest of us--having suffered greatly for his past actions and having, in therapy, carefully considered the causes and effects of lies.
Similarly, it is difficult to understand how doing public service, as valuable as it is, is relevant to his fitness and more specifically to his prior tendency to lie-- the reason he is before the Committee. The Court’s analysis of whether he is serving the community as opposed to improving his own flaws seem more relevant to the bar’s interest in not having people perceived to have done bad deeds associated with it.
The notion seems to be that a “remorseful” person, who has done public service is acceptable to be one of us. But is one who has done public service more fit to be a lawyer and less of a risk to the public? If so, shouldn’t we all have to do this before we get into the bar, as New York is now requiring?
Also, do courts and committees have the ability to discern if one is truly remorseful? I have serious doubts about this based on review of twenty years of reported cases. Even if they can do this, there is no evidence that remorse is predictive that one will not reoffend
Courts falter, in my opinion, when they turn to evaluating the amorphous and misunderstood concept of remorse and mixing it in a stew with all the other factors to determine if the person has been “exemplary” and is no longer “the person they were before.” While the California Supreme Court may well have gotten this case right, it has not clarified the lingering questions about the value and accuracy of this process. In fact, the language from this influential court may serve only to continue, or even exacerbate, the current confusion.
(Just an aside about the original transgressions- When I reviewed the facts, in the opinion I was shocked anew at the narcissism and cruelty of Glass’s actions. However, after perusing the media last night, I also realized that his actions now could be seen part of the norm for many blogs and cable news outlets. Journalistic truth in 2014 has a different quality than it did in 1998. I wonder if the Newseum will need to expand its rogue reporter exhibit in the future.)