California Bar Admission Character Qualifications Come Into Spotlight With “Dreamer” Admission

Passing the bar exam is only the penultimate step to the right to practice law.  No candidate becomes a member of the Bar without being deemed by the Supreme Court as being of fit character to practice law.  (Kwasnik v. State Bar, 50 Cal.3d 1061, 1067 (1990))

An applicant must be of “good moral character,” the absence of conduct imbued with elements of “moral turpitude.  (Hallinan v. Committee of Bar Examiners, 65 Cal.2d 447, 452 (1966)) It includes “qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process.” (Rules Regulating the Admission to Practice Law, rule X, section 1)

Few bar applicants face an extensive investigation of their character.  However, three recent Supreme Court reviews, In re Glass on Admission, S196374, In re Grant on Discipline, S197503, and the “Dreamer” case, In re Garcia on Admission, S202512, illustrate the importance of character to the Supreme Court.

The Glass case involves the Supreme Court’s enormous discretion in judging moral character.  During the 90’s, Glass had published 42 fraudulent articles created out of whole cloth.  He was exposed in 1998, and graduated from Georgetown Law School in 197o.  He passed California’s bar exam in 2007 after withdrawing an application for admission to the New York Bar.

The California State Bar, after vetting of Glass by its Committee of Bar Examiners, sought review by the California Supreme Court on the issue of his rehabilitation after his admitted fabricated publications.  On January 27, the Supreme Court denied admission to Glass.

The general rule on character reform, in this case, after an admitted defalcation, is set forth in In re Menna, 11 Cal.4th 975 (1995).  Glass bore the burden of establishing that he is not a person likely to continue to commit acts of moral turpitude.  (Hallinan v. Committee of Bar Examiners, supra, 65 Cal.2d at pp. 449-551, fn. 1.)  The Court examines the evidence and makes our own determination as to its sufficiency.  (Hightower v. State Bar, 34 Cal.3d 150 (1983))

The opinion in this case demonstrates the great discretion of the Supreme Court in character cases.  The amount of penance required turns on the applicant making a compelling showing of reform in light of the severity and scope of the underlying conduct.  (In re Gossage, 23 Cal.4th 1080 (2000))

The Court found that Glass, having engaged in moral turpitude over an extended period by fabricating his articles at the national level, in that he used his exceptional writing ability to publicly and falsely malign people and organizations for actions they did not commit.

The Court noted that his actions were motivated by professional ambition and betrayed a vicious, mean spirit and a complete lack of compassion for others.  Finally, once exposed, he did not fully cooperated in remedying the false articles.

His “hypocrisy and evasiveness” before and during the State Bar proceedings were cited by the Court as the basis for concluding that Glass did not meet the standard of “truly exemplary conduct “ required for rehabilitation.

Yet the Grant case shows that discretion will not apply to a felon-attorney who commits a crime showing moral turpitude.  Grant pleaded guilty to possession of child pornography, was given probation and a lifetime registration requirement as a sex offender.  On appeal, he raised the issue of whether this crime was moral turpitude per se.

The Supreme Court declared that receiving child pornography contributes to the victimization of the children.  This was a serious breach of the duties of respect and care that all adults owe to all children.  Such a flagrant disrespect for the law and societal norms would always undermine public confidence in and respect for the legal profession.

The “Dreamer” case, on the other hand, presents the unusual situation in which it was apparent that the Supreme Court’s considerable discretion over attorney admissions was hedged by a federal statute.

8 U.S.C. section 1621 precludes the award of any State or local public benefit to an undocumented alien.  Subdivison (c)(1)(a) applies the ban to “any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government.” Subdivision (d) provides that a state may enact an explicit statute  providing eligibility for anyone to obtain a professional license.

Although the State Bar argued that subdivision (c) did not include bar admission, the questions of the justices at oral argument on September 4, 2013, evidenced skepticism on the Court’s part.

However, Garcia’s case spurred action by the Legislature.  On October 5, 2013, the Governor signed AB 1024.  The bill recast Business and Professions Code section 6064 by reforming subdivision (b) to grant admission to “an applicant who is not lawfully present in the United States.”  AB 1024 became effective on January 1.
On January 2, the Supreme Court found that:  “by explicitly authorizing a bar applicant ‘who is not lawfully present in the United States’ to obtain a law license, the statute expressly states that it applies to undocumented immigrants — rather than conferring a benefit generally without specifying that its beneficiaries may include undocumented immigrants [section 1621(b)] — and thus ‘affirmatively provides’ that undocumented immigrants may obtain such a professional license so as to satisfy the requirements of section 1621(d).”  In other words, the Legislature had responded with alacrity to the Court’s probable anticipated ruling that the federal statute had tied its hands.

As in all matters based on the assessment of character, Glass indicates that the discretion of the Court is in full operation on the evaluation of individual candidates, while Grant indicates that discretion is not a test when a societal norm is undercut.

Garcia illustrates that great themes are sometimes implicated in the normally routine process of admission to the Bar.  In Garcia, Congress and the state legislature had to intervene in bar admissions to  deal with an entire group of heretofore disadvantaged class of law graduates within the state.

AFTERWORD:

In an opinion taking a diametrically different approach from the California Supreme Court, the Florida Supreme Court, on March 6, 2014, declared that undocumented immigrants are ineligible for admission to the Florida bar.  In re Florida Board of Bar Examiners, No. SC11-2568.  The Florida Court specifically noted that the position of the federal Department of Justice was that the same federal statute discussed in Garcia prohibited aliens who lack lawful immigration status were ineligible for state public benefits, including a professional license to practice law.

More by | James Ching James Ching , Law.com Contributor
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