Previous
The more common challenge arises where the Board finds that an applicant has failed to meet his or her burden of proof on the issue of good moral character and denies admission accordingly. Good moral character is a difficult term to define.
In re Eimers, 358 So. 2d 7 (Fla. 1978):
The Florida Board of Bar Examiners (the Board) has requested certain information for its guidance in determining the admissibility of an applicant to The Florida Bar.
The question which has been submitted by the Board with request for this Court's answer is:
Whether an applicant with an admitted homosexual orientation who is fully qualified for admission to The Florida Bar in all other respects can qualify for admission under the provisions of Article IV, Section 19, of the Rules of the Supreme Court of Florida Relating to Admission to the Bar, which section places a strict prohibition against any recommendation by the Board to the Supreme Court for admission to The Florida Bar for a person not determined to be of good moral character.
We answer this question in the affirmative, noting that our response is limited to situations in which the applicant's sexual orientation or preference is at issue. This opinion, then, does not address itself to the circumstance where evidence establishes that an individual has actually engaged in homosexual acts.
The applicant in the instant case is a graduate of an accredited law school, is certified for admission to the Pennsylvania Bar, and has passed all parts of The Florida Bar examination. The Florida Board of Bar Examiners has found him qualified for admission to The Florida Bar in all respects with the possible exception that he may fail to meet the "good moral character" standard for admission due to his homosexual preference.
The applicant admitted his homosexual preference in response to inquiry made at a hearing before the Board. He was not questioned about what sexual acts he may have engaged in. Further, no evidence was presented indicating that the applicant has acted or plans to act on his sexual preferences.
The United States Supreme Court described the term "good moral character" as "unusually ambiguous":
The term "good moral character" has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such 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. (Footnotes omitted)
Konigsberg v. State Bar of California, 353 U.S. 252, 262-263 (1957).
Wary of the state's capacity to arbitrarily deny an applicant admission to a state bar, the Supreme Court recognized as early as 1866 that the reasons for denying admission should be related to the purposes for exclusion. Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) (test oath required of all candidates for admission to the bar bore no relation to the qualifications necessary for the profession); cf. In re Rouss, 221 N.Y. 81, 85, 116 N.E. 782, 783 (1917). However, as long as there was a rational connection between the qualification and the applicant's ability to practice law, courts could exclude incompetent and iniquitous persons from the legal profession to protect clients and to assure a credible bar.
Elucidating upon these principles in the landmark case of Schware v. Board of Bar Examiners, 353 U.S. 232 (1957), the Supreme Court held that:
A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. . . . A 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. (Emphasis added)
Id. at 238-239.
Thus, in determining fitness for admission to the bar, state courts must now meet the standard imposed by the due process clause found in the Fourteenth Amendment. In the instant case, the issue which must be resolved is whether there is a rational connection between homosexual orientation and fitness to practice law.
In assessing the reasonableness of the relation between homosexual orientation and moral unfitness to be an attorney, we must make reference to the purposes promoted by ostracizing the morally unfit. The layman must have confidence that he has employed an attorney who will protect his interests. See Drinker, Legal Ethics, p. 89-188 (1953). Further, society must be guaranteed that the applicant will not thwart the administration of justice. These exigencies arise because the technical nature of law provides the unscrupulous attorney with a frequent vehicle to defraud a client. Further, the lawyer can obstruct the judicial process in numerous ways, e. g., by recommending perjury, misrepresenting case holdings, or attempting to bribe judges or jurors. Consequently, if an applicant has committed certain illegal acts in the past, he may represent a future peril to society which would justify denying the applicant admission.
In the instant case, however, we cannot believe that the candidate's mere preference for homosexuality threatens these societal exigencies. In a related context, we note that former Justice Ervin in The Florida Bar v. Kay, 232 So.2d 378 (Fla.1970) (Ervin, C. J., specially concurring)* observed:
While Respondent's act definitely affronts public conventions, I am concerned as to the extent of the authority of the Board of Governors of The Florida Bar under controlling concepts of due process to continue the discipline of Respondent since there is no showing in the record of a substantial nexus between his antisocial act, or its notoriety, or place of commission, and a manifest permanent inability on Respondent's part to live up to the professional responsibility and conduct required of an attorney. . . .
The present record contains no evidence scientific, medical, pathological or otherwise suggesting homosexual behavior among consenting adults is so indicative of character baseness as to warrant a condemnation per se of a participant's ability ever to live up to and perform other societal duties, including professional duties and responsibilities assigned to members of The Bar. . . .
Since it is held in Florida that The Bar has jurisdiction to discipline Florida Bar members concerning their personal or private morals, it would appear appropriate to require that such discipline be subject to a showing originally or when reinstatement is sought that there is a substantial connection between a member's antisocial behavior and his ability to otherwise carry out his professional responsibilities as an attorney. Otherwise, The Bar will be virtually unfettered in its power to censor the private morals of Florida Bar members, regardless of any nexus between the behavior and the ability to responsibly perform as an attorney. Governmental regulation in the area of private morality is generally considered anachronistic in the absence of a clear and convincing showing there is a substantial connection between the private acts regulated and public interests and welfare. (Emphasis added) Id. at 379-381.
Accordingly, we find that the applicant in the instant case is qualified for admission to The Florida Bar under the provisions of Article IV, Section 19, of the Rules of the Supreme Court of Florida Relating to Admission to The Florida Bar.
It is so ordered.
BOYD, Justice, dissenting.
Applicant admits he is a homosexual. Before a finding on the issue of his fitness to practice law I would remand this cause to the Board of Bar Examiners for an inquiry into whether he has committed homosexual acts of the kind criminally outlawed by Section 800.02, Florida Statutes. There should not be admitted to The Florida Bar anyone whose sexual life style contemplates routine violation of a criminal statute.
What is good moral character? Is it an appropriate basis for determining admission to the Bar? Is this standard clear enough to avoid improper discretion by bar examiners and courts? Does it provide meaningful standards or reflect a professional consensus, and if not, is its use likely to be "inconsistent, idiosyncratic, and needlessly intrusive." See Deborah Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491 (1985). What actions of an applicant will be sufficient to prevent a finding of good moral character?
a. As late as 1979, a trial judge in Virginia refused to issue a certificate of good moral character to a woman who was living with a man to whom she was not married. The Virginia Supreme Court disagreed, stating:
While [applicant’s ] living arrangement may be unorthodox and unacceptable to some segments of society, this conduct bears no rational connection to her fitness to practice law. It cannot, therefore, serve to deny her the certificate required by [Virginia Code].
Cord v. Gibb. 254 S.E.2d 71, 73 (Va. 1979). To what extent, if at all, should life-style issues affect admission to the Bar? If they are to have an effect, who is to determine what is "unorthodox" or appropriate? What consequences are there to such an approach?
b. Does failure to meet one’s obligations constitute lack of good moral character? Several courts have said yes. See, Board of Law Examiners v. Stevens, 868 S.W.2d 773 (Tex. 1994) (unsatisfied judgments); In re Beasley, 243 Ga. 1344, 253 S.E.2d 615, 617 (1979) (failure to honor child support obligations and URESA orders); In re Heller, 333 A.2d 401 (D.C.), cert. denied, 423 U.S. 840 (1975).
Even where there may be no legal obligation (as where a debt has been discharged in bankruptcy), the facts surrounding the discharge of the debt may evidence a lack of good moral character.
Application of Gahan, 279 N.W.2d 826, 831 (Minn. 1979):
The issue on appeal is whether, in view of the facts of this case and the applicable Federal rights protecting those who elect to file voluntary bankruptcy, the applicant to the Minnesota bar was properly denied admission on the grounds of insufficient moral character. . . .
Initially, we observe that persons discharging their debts in bankruptcy are afforded certain rights under Federal law. The fact of filing bankruptcy or the refusal to reinstate obligations discharged in bankruptcy cannot be a basis for denial of admission to the bar of the State of Minnesota. Any refusal so grounded would violate the Supremacy Clause of the United States Constitution since applicable Federal law clearly prohibits such a result.
However, these constitutional limitations do not preclude a court from inquiring into the bar applicant's responsibility or moral character in financial matters. The inquiry is impermissible only when the fact of bankruptcy is labeled "immoral" or "irresponsible," and admission is denied for that reason. In other words, we cannot declare bankruptcy a wrong when Federal law has declared it a right.
Thus, in the present case, Gahan's conduct prior to bankruptcy surrounding his financial responsibility and his default on the student loans may be considered to judge his moral character. However, the fact of his bankruptcy may not be considered, nor may his present willingness or ability to pay the loans be considered because under Federal bankruptcy law, he now has a right to not pay the loans.
2. Applicant's Moral Character.
. . . We hold that applicants who flagrantly disregard the rights of others and default on serious financial obligations, such as student loans, are lacking in good moral character if the default is neglectful, irresponsible, and cannot be excused by a compelling hardship that is reasonably beyond the control of the applicant. Such hardships might include an unusual misfortune, a catastrophe, an overriding financial obligation, or unavoidable unemployment.
We are, under the Minnesota Constitution, entrusted with the exclusive duty to assure the high moral standards of the Minnesota bar. We have no difficulty in concluding that Federal law does not preclude us from evaluating the responsibility of a bar applicant in satisfying his or her financial obligations. This is particularly true where, as here, the obligation has the significance of $14,000 in Federally insured student loans. A student loan is entrusted to a person, and is to be repaid to creditors upon graduation when and if financially able. Moreover, repayment provides stability to the student loan program and guarantees the continuance of the program for future student needs. A flagrant disregard of this repayment responsibility by the loan recipient indicates to us a lack of moral commitment to the rights of other students and particularly the rights of creditors. Such flagrant financial irresponsibility reflects adversely on an applicant's ability to manage financial matters and reflects adversely on his commitment to the rights of others, thereby reflecting adversely on his fitness for the practice of law. It is appropriate to prevent problems from such irresponsibility by denying admission, rather than seek to remedy the problem after it occurs and victimizes a client.
Applying the above principles to this case, we conclude that Gahan's failure to satisfy his obligations on the student loans cannot be excused for some compelling hardship reasonably beyond his control. During the period prior to bankruptcy, he was employed for most of the time at an annual salary of $15,000 and then $18,000. Monthly, he grossed from $1,250 to $1,500, and he accounted for monthly expenses of approximately $500. The record indicates that his monthly payments on the loans would be approxi-mately $175. He was healthy, single, and not subject to any unusual hardship. He was reasonably able to satisfy his legal and moral obligation to prepare for repayment and continue repayment of his student loans. His failure to do so demonstrates lack of good moral character and reflects adversely on his ability to perform the duties of a lawyer.
Compare Florida Board of Bar Examiners re: G.W.L., 364 So.2d 454 (Fla. 1978) (facts surrounding applicant’s declaration and discharge in bankruptcy raised substantial doubts about his honesty, fairness and respect for rights of others and for law of state and nation; application denied) with Florida Board of Bar Examiners re: Groot, 365 So.2d 164 (Fla. 1978) (facts surrounding discharge indicate conduct not morally reprehensible in circumstances; application granted).
c. Will prior criminal convictions prevent a finding of good moral character? Not necessarily, although in Missouri, a person who has been convicted of or pleaded guilty to a felony "shall not be eligible to apply for admission to the Bar until five years after" the conviction or completion of sentence, whichever is later. Mo. Sup. Ct. Rule 8.05(b).
Since present good moral character is the test, past criminal conduct may be instructive, but is not necessarily controlling. Illustrative is Application of A.T., 286 Md. 507, 408 A.2d 1023 (1979), where the applicant had several prior convictions for drug charges and drug related thefts and had served forty-four months in prison:
Rule 2d of the Rules Governing Admission to the Bar of Maryland provides that the applicant "shall at all times have the burden of proving his good moral character before the Character Committee, the Board and the Court . . . ." We have said that no litmus test exists for determining whether an applicant for admission to the Bar possesses good moral character. In Allan S., the Court set forth the controlling principles for determining whether an applicant with a criminal record has the requisite present moral character fitness to be admitted to the Bar. We said that where, as here, an applicant for admission to the Bar is shown to have committed a crime, the nature of the offense must be taken into consideration in determining whether his present moral character is good. We said that although a prior conviction is not conclusive of a lack of present good moral character, particularly where the offense occurred a number of years previous to the applicant's request for admission, it adds to his burden of establishing present good character by requiring convincing proof of his full and complete rehabilitation. Thus, we observed that a prior conviction must be taken into account in the overall measurement of character and considered in connection with other evidence of subsequent rehabilitation and present moral character. We said that the ultimate test of present moral character, applicable to original admissions to the Bar, is whether, viewing the applicant's character in the period subsequent to his misconduct, he has so convincingly rehabilitated himself that it is proper that he become a member of a profession which must stand free from all suspicion. Finally, we noted the cardinal principle governing applications for original admission to the Bar is that the absence of good moral character in the past is secondary to the existence of good moral character in the present.
* * *
Applying the principles articulated in Allan S. to the present case, we note, in considering the nature of the applicant's offenses, that all were directly related to his drug addiction. Furthermore, as pointed out by the Character Committee, the applicant was a user and not a dealer in drugs. In addition to the nature of the criminal offenses, we must consider the length of time that has elapsed since the criminal conduct occurred. In this case, the passage of time has been significant and substantial. The applicant's last offense occurred more than thirteen years before the Board hearing in October of 1979. Furthermore, the applicant has not used illicit drugs since August of 1967, a period of time spanning approximately twelve years. Finally, the applicant has been completely detoxified from methadone for more than six years.
As pointed out in Allan S., the crucial matter upon which we must focus is the applicant's present moral character fitness, as evidenced by the convincing record of his rehabilitation. The record wholly supports the conclusions of the Character Committee and the Board that the applicant is fully rehabilitated from his prior illegal activity. In undertaking to prove his present good moral character the applicant not only presented convincing medical evidence of his rehabilitation from drug use, but also produced character witnesses who gave particularly strong endorsements of his present good moral character. He also introduced into the record letters of recommendation from members of the legal and lay community. These letters attested to the applicant's present good character and are entitled to respectful consideration by the Court.
Giving due consideration to the nature of the applicant's offenses, the time of their commission, the circumstances involved, the fact that the burden rests upon the applicant to prove his good moral character, and most importantly, the convincing evidence of the applicant's rehabilitation, we think that he has established the requisite present moral character fitness that justifies his admission to the Bar of Maryland.
IT IS SO ORDERED.
SMITH, Judge, dissenting.
It is with regret that I once again dissent from the admission of an individual to practice before this Court.
Part of the problem apparently is a difference between my colleagues and me as to what constitutes good moral character. They seem to be of the belief that one can be said to possess good moral character if he has not violated the law lately. I do not see it that way. Thomas Paine, the political pamphleteer of the American Revolution, observed in The American Crisis No. XXIII (1783), "Character is much easier kept than recovered." I agree.
The Random House Dictionary of the English Language (unabridged ed. 1967) defines "character" in pertinent part:
1. the aggregate of features and traits that form the apparent individual nature of some person or thing. 2. one such feature or trait; characteristic. 3. moral or ethical quality . . . . 4. qualities of honesty, courage, or the like; integrity . . . . 5. reputation . . . . 6. good repute. . . . (Id. at 247.)
Webster's Third New International Dictionary (unabridged ed. 1961) states in pertinent part on this subject:
1 : . . . 9 : reputation esp. when good . . . . 10 : a composite of good moral qualities typically of moral excellence and firmness blended with resolution, self-discipline, high ethics, force, and judgment . . . . (Id. at 376.)
The American Heritage Dictionary of the English Language (New College ed. 1976) defines the term in pertinent part:
1. . . . 3. The combined moral or ethical structure of a person . . . . 4. Moral or ethical strength; integrity; fortitude. 5. Reputation: . . . . 10. A description of a person's attributes, traits, or abilities. . . . (Id. at 226.)
In World v. State, 50 Md. 49 (1878), Judge Grason said for the Court:
It was further contended that the evidence of the police officer was inadmissible, because it related to the Character of the accused, instead of being confined to his Reputation. Character and reputation are synonymous terms, and we can see no objection to the evidence introduced, that the character and reputation of the accused was that of a "common thief" during the time the witness knew him. (Id. at 56 (emphasis in original).)
Black's Law Dictionary (5th ed. 1979) states relative to character:
The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of the one's distinguishing attributes. That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him. A person's fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or otherwise, is obtained. The estimate attached to an individual or thing in the community. The opinion generally entertained of a person derived from the common report of the people who are acquainted with him. Although "character" and "reputation" are often used synonymously, the terms are distinguishable. "Character" is what a man is, and "reputation" is what he is supposed to be in what people say he is. "Character" depends on attributes possessed, and "reputation" on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. (Id. at 211.) As to good character it says: Sum or totality of virtues of a person which generally forms the basis for one's reputation in the community, though his reputation is distinct from his character. (Id. at 623.)
If this young man has in fact reformed from his earlier drug habit and stealing, I am delighted. The fact that it is believed by some that he will not revert to his former habits, however, does not in my view automatically establish good moral character. Where would the majority draw the line? As judges and prior experienced practitioners of the law they know that many homicides are a once in a lifetime proposition in which there will be no recurrence of the circumstances giving rise to the homicide. Thus, in the absence of evidence of other violations of law, one could say that the person has reformed. Do my colleagues propose permitting convicted murderers to become Maryland lawyers since they have not killed anyone lately?
* * *
Our requirement that a candidate show himself to be possessed of good moral character is for the purpose of protecting the public. In the same manner we have said that the imposition of a sanction on an erring attorney is not for purposes of punishment of the individual lawyer but for the protection of the public. The practice of law often involves handling the funds of clients running into tens of thousands and even hundreds of thousands of dollars. This can and does present a temptation to some individuals, as experience has amply demonstrated. Therefore, I regard honesty as one of the most important traits of character which should be required of a prospective lawyer. He should be forthright and honest in all of his dealings, but particularly where the funds and property of others are concerned. When a person is admitted to the Bar he becomes an officer of this Court. When we admit him we are in effect certifying to the general public that he is a person to whom the affairs of others may safely be entrusted. I am not prepared at this time to say that this young man is possessed of good moral character and thus is a proper person to be an officer of this Court.
See also In re Sobin, 649 A.2d 589 (D.C. 1994) (felony conviction for conspiracy to manufacture controlled substances and aiding and abetting prostitution and racketeering not sufficient to deny admission where offenses occurred a substantial time in the past and the applicant had a strong record since that time). See generally, Annot., 88 A.L.R.3d 192 (1978). It is frequently the facts surrounding the offense, and not the offense itself, which warrants denial of admission.
Should certain offenses bar admission forever? If so, what offenses? Should a showing of present good moral character be sufficient for persons who have previously been convicted of a crime, or should some further affirmative showing be required? See In re Application of Davis, 38 Ohio St. 2d 273, 313 N.E.2d 363 (1974) (the burden of establishing good moral character "takes on added weight of proving . . . full and complete rehabilitation subsequent to the conviction," and such rehabilitation must be shown by clear and convincing evidence).
What about relatively minor offenses? Should they be relevant to a finding of good moral character? What if such offenses, although minor, are repeated? What about traffic violations? While generally offenses that are minor will not prevent a finding of good moral character unless they bear directly on honesty or fitness to practice, at least one court has found that repeated violation of traffic laws, including speeding and reckless driving, that led to license revocation were sufficient to warrant denial of admission to practice. See In re Kapel, 72 Ohio St. 3d 532, 651 N.E.2d 955 (1995).
d. Other than that already discussed, what kind of activity or behavior is likely to prevent a finding of good moral character? What about applicants who are obnoxious, rude, bizarre or offensive? See, e.g., Lane v. Nebraska State Bar Ass’n, 249 Neb. 499, 544 N.W.2d 367 (1996).
Surprisingly, one relatively common basis for denial of admission is engaging in the unauthorized practice of law. This is particularly true where one holds him or herself out as an attorney. See, e.g., In re Craig, 190 Wis. 2d 494, 526 N.W.2d 261 (1995).
Lack of candor or misstatements on bar applications are frequently grounds for failure to find good moral character. See, e.g., In re Heckman, 1996 WL 736602 (Wis. 1996); In re Beasley, 243 Ga. 134, 252 S.E.2d 615, 617 (1979) (false, misleading or evasive answers may be grounds for finding lack of requisite good moral character). What about a failure or refusal to answer questions? Although an applicant may not be penalized for refusing to answer questions that request constitutionally protected information, see, e.g., Carfagno v. Harris, 470 F. Supp. 219 (E.D. Ark. 1979) (protected associational activity), failure to provide requested information without such basis may well lead to denial. The right of bar examiners to ask a broad range of questions has been recognized, although there are limits. A current issue of concern is the extent to which the Americans with Disabilities Act (ADA) imposes limits on the bar’s ability to ask questions regarding previous drug abuse or mental health problems and treatment. See, e.g., In re Petition and Questionnaire for Admission to the Rhode Island Bar, 683 A.2d 1333 (R.I. 1996).
Historically, many state and federal courts required residency in the local jurisdiction as a pre-condition to bar admission. In three cases, however, the Supreme Court held that such residency requirements violate the Privileges and Immunities Clause of the United States Constitution and are therefore unconstitutional. In Piper v. New Hampshire Supreme Court, 470 U.S. 274 (1985), the court invalidated a simple residency requirement that mandated residency at the date of admission. In Virginia Supreme Court v. Friedman, 487 U.S. 59 (1988), the Court applied Piper to invalidate a provision requiring non-resident attorneys to take a bar exam for admission but allowing resident attorneys to "waive into" the bar without examination. Finally, in Barnard v. Thorstenn, 489 U.S. 546 (1989), the Court invalidated a Virgin island requirement that applicants have previously resided for a year and intend to reside in the future.
In each of these cases, the Court rejected various justifications asserted for the residency requirement at issue, finding them to be insubstantial. Thus, the Court found that fears that non-resident lawyers would not be abreast of local rules and procedures, would behave unethically, would be unavailable for court appearances, and would decline pro bono work were unwarranted. Moreover, the Court found that a state's desire to protect its own lawyers from competition was not a substantial justification, but rather was precisely the type of "economic protectionism" that the Clause was designed primarily to prevent.
Many states, in an effort to foster protectionism without running afoul of the Privileges and Immunities clause, established requirements that attorneys maintain an office for full-time practice of law in the jurisdiction in order to obtain admission. Others did away with admission without examination, although a counter-trend toward reestablishing such admission has emerged.
With the increase in national and international practice and use of the multistate bar exam, are we likely to move toward national standards for admission, or in fact toward national bar admission? What resistance is there likely to be? What consequences might such a development have on the structure of law practice? Is this desirable?
| Previous |
Next |